The opinion of the court was delivered by

LONG, J.

In this case, we are called on to determine what legal standard applies to a third party’s claim to joint custody and visitation of her former domestic partner’s biological children, with whom she lived in a familial setting and in respect of whom she claims to have functioned as a psychological parent. Although the case arises in the context of a lesbian couple, the standard we enunciate is applicable to all persons who have willingly, and with the *206approval of the legal parent, undertaken the duties of a parent to a child not related by blood or adoption.1

I

The following facts were established at trial. V.C. and M.J.B., who are lesbians, met in 1992 and began dating on July 4, 1993. On July 9, 1993, M.J.B. went to see a fertility specialist to begin artificial insemination procedures. She prepared for that appointment by recording her body temperature for eight to nine months prior for purposes of tracking her ovulation schedule. She had been planning to be artificially inseminated since late 1980. According to M.J.B., she made the final decision to become pregnant independently and before beginning her relationship with V.C. Two individuals who knew M.J.B. before she began dating V.C., confirmed that M.J.B. had been planning to become pregnant through artificial insemination for years prior to the beginning of the parties’ relationship.

According to V.C., early in their relationship, the two discussed having children. However, V.C. did not become aware of M.J.B.’s visits with the specialist and her decision to have a baby by artificial insemination until September 1993. In fact, the doctor’s records of M.J.B.’s first appointment indicate that M.J.B. was single and that she “desires children.”

Nonetheless, V.C. claimed that the parties jointly decided to have children and that she and M.J.B. jointly researched and decided which sperm donor they should use. M.J.B. acknowledged that she consulted V.C. on the issue but maintained that she individually made the final choice about which sperm donor to use.

Between November 1993 and February 1994, M.J.B. underwent several insemination procedures. V.C. attended at least two of those sessions. In December 1993, V.C. moved into M.J.B.’s apartment. Two months later, on February 7, 1994, the doctor *207informed M.J.B. that she was pregnant. M.J.B. called V.C. at work to tell her the good news. Eventually, M.J.B. was informed that she was having twins..

During M.J.B.’s pregnancy, both M.J.B. and V.C. prepared for the birth of the twins by attending pre-natal and Lamaze classes. In April 1994, the parties moved to a larger apartment to accommodate the pending births. V.C. contended that during that time they jointly decided on the children’s names. M.J.B. admitted consulting V.C., but maintained that she made the final decision regarding names.

The children were born on September 29, 1994. V.C. took M.J.B. to the hospital and she was present in the delivery room at the birth of the children. At the hospital, the nurses and staff treated V.C. as if she were a mother. Immediately following the birth, the nurses gave one child to M.J.B. to hold and the other to V.C., and took pictures of the four of them together. After the children were born, M.J.B. took a three-month maternity leave and V.C. took a three-week vacation.

The parties opened joint bank accounts for their household expenses, and prepared wills, powers of attorney, and named each other as the beneficiary for their respective life insurance policies. At some point, the parties also opened savings accounts for the children, and named V.C. as custodian for one account and M.J.B. as custodian for the other.

The parties also decided to have the children call M.J.B. “Mommy” and V.C. “Meema.” M.J.B. conceded that she referred to V.C. as a “mother” of the children. In addition, M.J.B. supported the notion, both publicly and privately, that during the twenty-three months after the children were born, the parties and the children functioned as a family unit. M.J.B. sent cards and letters to V.C. that referred to V.C. as the children’s mother, and indicated that the four of them were a family. The children also gave cards to V.C. that indicated that V.C. was their mother. M.J.B. encouraged a relationship between V.C. and the children and sought to create a “happy, cohesive environment for the *208children.” M.J.B. admitted that, when the parties’ relationship was intact, she sometimes thought of the four of them as a family. However, although M.J.B. sometimes considered the children “theirs,” other times she considered them “hers”.

M.J.B. agreed that both parties cared for the children but insisted that she made substantive decisions regarding their lives. For instance, M.J.B. maintained that she independently researched and made the final decisions regarding the children’s pediatrician and day care center. V.C. countered that she was equally involved in all decision-making regarding the children. Specifically, V.C. claimed that she participated in choosing a day care center for the children, and it is clear that M.J.B. brought V.C. to visit the center she selected prior to making a final decision.

M.J.B. acknowledged that V.C. assumed substantial responsibility for the children, but maintained that V.C. was a mere helper and not a co-parent. However, according to V.C., she acted as a co-parent to the children and had equal parenting responsibility. Indeed, M.J.B. listed V.C. as the “other mother” on the children’s pediatrician and day care registration forms. M.J.B. also gave V.C. medical power of attorney over the children.

A number of witnesses testified about their observations of the parties’ relationship and V.C.’s role in the children’s lives. V.C.’s mother testified that M.J.B. told her that V.C. and M.J.B. would be co-parents to the children and that the parties made a joint decision to have children. In addition, she observed that M.J.B., V.C. and the children functioned as a family. Likewise, L.M., a co-worker and friend of M.J.B., testified that she spent time with the parties before, during and after M.J.B.’s pregnancy, and that she regarded the parties as equal co-parents to the children.

Another co-worker and friend of M.J.B., D.B., also testified that V.C. was a co-parent to the children. In addition, D.B. revealed that M.J.B. planned to continue the relationship between V.C. and the children after the breakup, as long as V.C. contributed money toward the children’s expenses. However, another witness, A.R., *209indicated that V.C. was minimally involved in taking care of the children, but acknowledged that V.C. had an important role in the twins’ lives. Testifying for M.J.B., both A.R. and M.I. stated that they regarded M.J.B. as the children’s primary caretaker.

Together the parties purchased a home in February 1995. Later that year, V.C. asked M.J.B. to marry her, and M.J.B. accepted. In July 1995, the parties held a commitment ceremony where they were “married.” At the ceremony, V.C., M.J.B. and the twins were blessed as a “family.”

Together, V.C. and M.J.B. joined the Lambda family organization, made up of lesbian and gay parents or expectant parents. The Lambda family organization is a social group in which children become aware of other families that also have gay and lesbian parents. V.C. and M.J.B., together with the children, attended at least ten Lambda functions.

Additionally, as a group, V.C., M.J.B. and the twins attended family functions, holidays, and birthdays. According to V.C., she did not attend family functions with M.J.B.’s family because they were unhappy about M.J.B.’s sexual orientation. However, V.C. claimed that M.J.B. had a very good relationship with V.C.’s mother, S.D., and that the children were very close to V.C.’s family. Apparently, the children referred to S.D. as “Grandma,” and to V.C.’s grandmother, as “great-grandma.”

During their relationship, the couple discussed both changing the twins’ surname to a hyphenated form of the women’s names and the possibility of V.C. adopting the children. M.J.B. testified that the parties considered adoption and in June 1996 consulted an attorney on the subject. M.J.B. paid a two thousand dollar retainer, and the attorney advised the parties to get letters from family and friends indicating that the parties and the twins functioned as a family. The parties never actually attempted to get the letters or proceed with the adoption. V.C. alleged that M.J.B. was willing to go through with the adoption even after the parties split.

*210Just two months later, in August 1996, M.J.B. ended the relationship. The parties then took turns living in the house with the children until November 1996. In December 1996, V.C. moved out. M.J.B. permitted V.C. to visit with the children until May 1997. During that time, V.C. spent approximately every other weekend with the children, and contributed money toward the household expenses.

In May 1997, M.J.B. went away on business and left the children with V.C. for two weeks. However, later that month, M.J.B. refused to continue V.C.’s visitation with the children, and at some point, M.J.B. stopped accepting V.C.’s money. M.J.B. asserted that she did not want to continue the children’s contact with V.C. because she believed that V.C. was not properly earing for the children, and that the children were suffering distress from continued contact with V.C. Both parties became involved with new partners after the dissolution of their relationship. Eventually, V.C. filed this complaint for joint legal custody.2

At trial, expert witnesses appeared for both parties. Dr. All-wyn J. Levine testified on behalf of V.C., and Dr. David Brodzin-sky testified on behalf of M.J.B. Both experts arrived at similar conclusions after having examined the women individually and with the children, and after examining the children separately.

Dr. Levine concluded that both children view V.C. as a maternal figure and that V.C. regards herself as one of the children’s mothers. “[Bjecause the children were basically parented from birth” by V.C. and M.J.B. “until they physically separated,” Dr. Levine concluded that the children view the parties “as interchangeable maternal mothering objects” and “have established a maternal bond with both of the women.”

*211Dr. Levine likened the parties’ relationship to a heterosexual marriage. Consequently, the children would be affected by the loss of V.C. just as if they had been denied contact with their father after a divorce. Dr. Levine explained that the children would benefit from continued contact with V.C. because they had a bonded relationship with her. Dr. Levine further noted that if the children felt abandoned by V.C., they might also feel unnecessary guilt and assume that they made V.C. angry or somehow caused the parties’ separation. Although the doctor believed that the children could adapt to the loss of V.C., he indicated that the long-term effects were unknown. Furthermore, Dr. Levine indicated that the animosity between V.C. and M.J.B. could harm the children, but surmised that counseling could lessen the parties’ animosity.

Likewise, Dr. Brodzinsky concluded that V.C. and the children enjoyed a bonded relationship that benefitted both children. Dr. Brodzinsky determined that the children regarded V.C. as a member of their family. The doctor believed that it was normal for young children to feel that way about a person with whom they have spent considerable time. However, Dr. Brodzinsky noted that as children “get older, family becomes more specifically tied ... to biological connections.” The doctor’s report indicated that, when asked who their mother was, the children did not immediately point to V.C., but upon further inquiry agreed that V.C. was their mother. The doctor further noted that the children viewed M.J.B’s new partner as a current member of their family. Dr. Brodzinsky expressed concern that, if visitation were permitted, the parties’ animosity would negatively impact the children. The doctor, however, acknowledged that counseling would reduce the level of animosity between the parties. Dr. Brodzinsky further recognized that the children would suffer some short-term stress from the loss of V.C. but would likely recover in time.

In contrast to Dr. Levine’s opinion, Dr. Brodzinsky believed that the loss of V.C. was not akin to the loss of a parent in a heterosexual divorce. The doctor explained that societal views *212foster the expectation that a child and a parent -will continue then-relationship after a divorce, but that no similar expectation would exist for the children’s relationship with V.C. Still, Dr. Brodzin-sky testified that “[t]he ideal situation is that [M.J.B.] is allowed to get on with her life as she wants, but to the extent possible that ... these children be able at times to have some contact with [V.C.] who’s important to them.” Assuming that the parties could maintain a reasonably amicable relationship, Dr. Brodzinsky felt that the children “would probably benefit from ongoing contact [with V.C.] as they would with any person with whom they have a good solid relationship that can nurture them.”

The trial court denied V.C.’s applications for joint legal custody and visitation because it concluded that she failed to establish that the bonded relationship she enjoyed with the children had risen to the level of psychological or defacto parenthood. In so doing, the court gave significant weight to the fact that the decision to have children was M.J.B.’s, and not a joint decision between M.J.B. and V.C.

Finding that V.C. did not qualify as a psychological parent to the children, the trial court opined that it would “only be able to consider [V.C.’s] petition for custody if [she] was able [to] prove [M.J.B.] to be an unfit parent.” Because V.C. did not allege that M.J.B. was an unfit parent, the trial court held that V.C. lacked standing to petition for joint legal custody. The court also denied V.C.’s application for visitation, determining that even a stepparent would not be granted such visitation except for equitable reasons, not present here. Further, it resolved that visitation was not in the children’s best interests because M.J.B. harbored animosity toward V.C. that would “inevitably pass[ ] along to the children.” According to the trial court, the case might have been different had V.C. “enjoyed a longer and more irreplaceable relationship with the children....” Upon the entry of judgment, V.C. appealed.

On March 5, 1999, an Appellate Division panel decided the case in three separate opinions. 319 N.J.Super. 103, 725 A.2d 13. *213Judge Stern authored the majority opinion, which affirmed the denial of V.C.’s application for joint legal custody but reversed the denial of her petition for visitation. Id. at 106, 725 A.2d 13. In so doing, the court concluded that V.C. had established a parent-like relationship and “stood in the shoes of a parent.” Id. at 119, 725 A.2d 13. The majority analyzed the case under the best interests of the child standard, and, based on the record before it, determined that joint legal custody was not in the best interests of the children. Id. at 119, 725 A.2d 13. The trial court’s judgment denying V.C.’s petition for joint custody was affirmed. Id. at 119-20, 725 A.2d 13.

As to visitation, although recognizing that animosity between the parties is an important factor in the best interests test, the majority concluded that M.J.B. cannot deprive V.C. or the twins of visitation simply because M.J.B. harbors negative feelings toward V.C. Id. at 118, 725 A.2d 13. Relying on the experts’ testimony, the majority concluded that V.C.’s continued contact with the children is in their best interests; therefore, it reversed the judgment denying V.C.’s petition for visitation and remanded for proceedings to establish a visitation schedule. Id. at 119-20, 725 A.2d 13.

The two partial dissenters staked out opposite positions on the issues. Judge Braithwaite determined that V.C. does not qualify as a psychological parent and thus would have denied both joint custody and visitation. Judge Weeker concluded that V.C. qualifies as a psychological parent and that the best interests standard necessarily applies to both visitation and custody. Id. at 137, 725 A.2d 13. She would have granted visitation on the record before her and remanded for a best interests hearing on joint custody.

An order for visitation was established on March 26, 1999. Both M.J.B. and V.C. appealed as of right from the dissents discussed above. B. 2:2-l(a)(2). M.J.B. also moved for a stay. Thereafter, we denied M.J.B.’s stay motion and accelerated the appeals.

*214 II

On appeal, M.J.B. argues that we lack subject matter jurisdiction to consider V.C.’s custody and visitation claims because the-legislative scheme and the common law do not recognize her rights; that V.C. lacks standing to claim custody and visitation because she has not asserted parental unfitness; that V.C.’s application intrudes on M.J.B.’s basic liberty interest in raising her children as she sees fit; that protection of the children from serious harm is the only basis for governmental intervention into her private life with her children; that she has an absolute right to decide with whom her children will associate; that V.C. was the equivalent of a nanny whose status deserves no special acknowledgment; that she did not give consent to V.C.’s role as a “parent”; and finally that the Appellate Division erred in substituting its fact-finding for that of the trial court.

V.C. counters that she qualifies as a parent under N.J.S.A. 9:2-13(f); that she is a psychological parent3 of the twins thus justifying the invocation of the court’s parens patriae power to sustain that relationship; that in such circumstances the best interests test applies; and, on her cross-appeal, that denial of joint legal custody was erroneous because of her status as a de facto parent.

Various amici filed briefs supporting the arguments advanced by V.C. including the American Civil Liberties Union of New Jersey, the American Civil Liberties Union Foundation, the Lambda Legal Defense and Education Fund, the National Center for Lesbian Rights, and the Lambda Families of New Jersey. Those amici (collectively referred to as the “ACLU”) are nonprofit organizations that are committed, among other things, to defending the civil liberties and rights of gay and lesbian families and individuals. According to the ACLU, it submitted a brief *215“primarily because it is concerned about M.J.B.’s sweeping attack on the de facto parent doctrine, which has long served to protect children in this State by protecting their important relationships with adults who function as parents to them.”

In addition, we granted Concerned Women For America (“CWA”) the right to appear as amicus curiae in order to argue its case against a “heavy judicial hand favoring the homosexual agenda.” CWA asserts that the courts “are deliberately misconstruing the law to reach a politically correct result.” According to CWA, the Legislature is the appropriate forum for this discussion.

Ill

We turn first to M.J.B.’s claim that we lack jurisdiction- and that V.C. lacks standing to apply for joint custody and visitation because neither the statutes nor the common law acknowledge the existence of such a cause of action by a third party.

A

There are no statutes explicitly addressing whether a former unmarried domestic partner has standing to seek custody and visitation with her former partner’s biological children. That is not to say, however, that the current statutory scheme dealing with issues of custody and visitation does not provide some guiding principles. N.J.S.A. 9:2-3 prescribes:

When the parents of a minor child live separately, or are about to do so, the Superior Court, in an action brought by either parent, shall have the same power to make judgments or orders concerning care, custody, education and maintenance as concerning a child whose parents are divorced____

Further, N.J.S.A. 9:2-4 provides, in part, that *216By that scheme, the Legislature has expressed the view that children should not generally be denied continuing contact with parents after the relationship between the parties ends.

*215[t]he Legislature finds and declares that it is in the public policy of this State to assure minor children of frequent and continuing contact with both parents after the parents have separated or dissolved their marriage and that it is in the public interest to encourage parents to share the rights and responsibilities of child rearing in order to effect this policy. In any proceeding involving the custody of a minor child, the rights of both parents shall be equal____

*216 N.J.S.A. 9:2-13(f) provides that “[t]he word “parent,” when not otherwise described by the context, means a natural parent or parent by previous adoption.” M.J.B. argues that because V.C. is not a natural or adoptive parent, we lack jurisdiction to consider hfer claims. That is an incomplete interpretation of the Act. Although the statutory definition of parent focuses on natural and adoptive parents, it also includes the phrase, “when not otherwise described by the context.” That language evinces a legislative intent to leave open the possibility that individuals other than natural or adoptive parents may qualify as “parents,” depending on the circumstances.4

*217If a statute is clear and unambiguous on its face, the court must determine the intent of the Legislature from its plain meaning. Franklin Tower One, L.L.C. v. N.M., 157 N.J. 602, 613, 725 A.2d 1104 (1999) (citing Board of Educ. v. Neptune Township Educ. Ass’n, 144 N.J. 16, 25, 675 A.2d 611 (1996) (quoting State v. Butler, 89 N.J. 220, 226, 445 A.2d 399 (1982))). Moreover, statutory “language must not, if reasonably avoidable, be found to be inoperative, superfluous or meaningless.” In re Sussex County Mun. Utils. Auth., 198 N.J.Super. 214, 217, 486 A.2d 932 (App. Div.1985) (quoting Hackensack Bd. of Educ. v. Hackensack, 63 N.J.Super. 560, 569, 165 A.2d 33 (App.Div.1960)).

By including the words “when not otherwise described by the context” in the statute, the Legislature obviously envisioned a case where the specific relationship between a child and a person not specifically denominated by the statute would qualify as “parental” under the scheme of Title 9. Although the Legislature may not have considered the precise case before us, it is hard to imagine what it could have had in mind in adding the “context” language other than a situation such as this, in which a person not related to a child by blood or adoption has stood in a parental role vis-a-vis the child. It is that contention by V.C. that brings this ease before the court and affords us jurisdiction over V.C.’s complaint.5

B

Separate and apart from the statute, M.J.B. contends that there is no legal precedent for this action by V.C. She asserts, *218correctly, that a legal parent has a fundamental right to the care, custody and nurturanee of his or her child. Watkins v. Nelson, 163 N.J. 235, 245, 748 A.2d 558 (2000); Matter of D.T., 200 N.J.Swper. 171, 176, 491 A.2d 7 (App.Div.1985). Various constitutional provisions have been cited as the source of that right, which is deeply imbedded in our collective consciousness and traditions. Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 1213, 31 L.Ed.2d 551, 559 (1972) (citing Skinner v. Oklahoma, 316 U.S. 535, 541, 62 S.Ct. 1110, 1112, 86 L.Ed. 1655, 1660 (1942) (equal protection clause)); Griswold v. Connecticut, 381 U.S. 479, 496, 85 S.Ct. 1678, 1688 14 L.Ed.2d 510, 522 (1965) (Goldberg, J., concurring) (privacy guarantees). In general, however, the right of a legal parent to the care and custody of his or her child derives from the notion of privacy. According to M.J.B., that right entitles her to absolute preference over V.C. in connection with custody and visitation of the twins. She argues that V.C., a stranger, has no standing to bring this action. We disagree.

The right of parents to the care and custody of their children is not absolute. For example, a legal parent’s fundamental right to custody and control of a child may be infringed upon by the state if the parent endangers the health or safety of the child. Wisconsin v. Yoder, 406 U.S. 205, 233-34, 92 S.Ct. 1526, 1542, 32 L.Ed.2d 15, 35 (1972); Prince v. Massachusetts, 321 U.S. 158, 166-67, 64 S.Ct. 438, 442, 88 L.Ed. 645, 652-53 (1944). Likewise, if there is a showing of unfitness, abandonment or gross misconduct, a parent’s right to custody of her child may be usurped. Watkins, supra, 163 N.J. at 237, 748 A.2d 558; Guardianship of K.H.O., 161 N.J. 337, 347, 736 A.2d 1246 (1999); Adoption of Child by D.M.H. & S.H., 135 N.J. 473, 481, 641 A.2d 235 (1994); New Jersey Div. of Youth Fam. Serv. v. K.M., 136 N.J. 546, 557, 643 A.2d 987 (1994); In re Adoption of Children by D., 61 N.J. 89, 95, 293 A.2d 171 (1972); Zack v. Fiebert, 235 N.J.Super. 424, 428, 563 A.2d 58 (App.Div.1989); D.T., supra, 200 N.J.Super. at 176, 491 A.2d 7.

*219According to M.J.B., because there is no allegation by V.C. of unfitness, abandonment or gross misconduct, there is no reason advanced to interfere with any of her constitutional prerogatives. What she elides from consideration, however, is the “exceptional circumstances” category (occasionally denominated as extraordinary circumstances) that has been recognized as an alternative basis for a third party to seek custody and visitation of another person’s child. Watkins, supra, 163 N.J. at 247-48, 748 A.2d 558; D.T., supra, 200 N.J.Super, at 176, 491 A.2d 7. The “exceptional circumstances” category contemplates the intervention of the Court in the exercise of its parens patriae power to protect a child. Sorentino v. Family & Children’s Soc’y of Elizabeth, 72 N.J. 127, 132, 367 A.2d 1168 (1976); Adoption of M., 317 N.J.Super. 531, 541, 722 A.2d 615 (Ch.Div.1998); see also Sider v. Sider, 334 Md. 512, 639 A.2d 1076, 1085 (1994)(stating that presumption of parental fitness can be overcome upon showing of unfitness or exceptional circumstances); Cotton v. Wise, 977 S.W.2d 263, 265 (Mo.1998)(requiring unfitness, abandonment, or extraordinary circumstances before terminating parental rights); Merritt v. Way, 58 N.Y.M 850, 460 N.Y.S.2d 20, 446 N.E.2d 776, 777 (1983)(stating that surrender, abandonment, unfitness, persistent neglect, or other extraordinary circumstance will result in termination of right to custody).

Subsumed within that category is the subset known as the psychological parent cases in which a third party has stepped in to assume the role of the legal parent who has been unable or unwilling to undertake the obligations of parenthood. Sorentino, supra, 72 N.J. at 132, 367 A.2d 1168 (acknowledging that before court would remove child from foster home and return to biological parents, hearing was necessary to determine whether child would be psychologically harmed by the separation from his foster parents); Matter of Adoption of Child by P.S., 315 N.J.Super. 91, 94-95, 716 A.2d 1171 (App.Div.1998) (stating that court must consider whether child bonded and formed psychological relationship with foster parents before custody rights of natural parent *220could be asserted); Guardianship of J.T., 269 N.J.Super. 172, 190, 634 A.2d 1361 (App.Div.1993) (finding transfer of child from foster mother, who acted as psychological parent, to biological mother was barred because overwhelming evidence existed that psychological harm to child would result); Todd v. Sheridan, 268 N.J.Super. 387, 398, 633 A.2d 1009 (App.Div.1993) (applying best interest standard in custody dispute between four year old’s biological father and maternal grandparents, who lived with child and acted as psychological parents); Zack v. Fiebert, 235 N.J.Super. 424, 433, 563 A.2d 58 (App.Div.1989) (establishing that maternal grandparents, who were not psychological parents, needed to prove biological father’s unfitness to obtain custody, not simply best interests); D.T., supra, 200 N.J.Super. at 175, 491 A.2d 7 (App. Div.1985) (finding that maternal grandparents, with whom grandchild and biological mother resided, were not entitled to custody of grandchild upon death of biological mother because grandparents failed to demonstrate that they were psychological parents); Hoy v. Willis, 165 N.J.Super. 265, 277, 398 A.2d 109 (App.Div.1978) (finding that best interests of child required that custody of child be granted to maternal aunt with whom child was voluntarily placed by natural mother and with whom child had developed a psychological parent relationship); Guardianship of D., C., E. & A., 169 N.J.Super. 230, 242, 404 A.2d 663 (Camden County Ct.1979) (finding that foster parents, who were child’s psychological parents, were entitled to custody over natural parents who had lacked contact for over four years).

Cases in other jurisdictions have also recognized the psychological parent doctrine. Carter v. Brodrick, 644 P.2d 850, 855 (Alaska 1982)(acknowledging that step-parents who stand in loco parentis have ability to petition for visitation); Custody of C.C.R.S., 892 P.2d 246, 247 (Colo.1995)(holding that best interest test applies to determine custody between biological and psychological parents); Simpson v. Simpson, 586 & W.2d 33, 35 (Ky.l979)(recognizing that nonparent who stands in loco parentis may petition for custody); E.N.O. v. L.M.M., 429 Mass. 824, 711 N.E.2d 886, 893-94 (1999) (holding that trial court had jurisdiction to award visitation be*221tween child and de facto parent); In Matter of J.W.F., 799 P.2d 710, 714 (Utah 1990) (“[T]he fact that a person is not a child’s natural or legal parent does not mean that he or she must stand as a total stranger to the child where custody is concerned. Certain people, because of their relationship to a child, are at least entitled to standing to seek a determination as to whether it would be in the best interests of the child for them to have custody.”); Custody of H.S.H.-K, 198 Wis.2d 649, 533 N.W.2d 419, 421 (1995)(out-lining four prong test for establishing defacto parent relationship).

At the heart of the psychological parent eases is a recognition that children have a strong interest in maintaining the ties that connect them to adults who love and provide for them. That interest, for constitutional as well as social purposes, lies in the emotional bonds that develop between family members as a result of shared daily life. Smith v. Organization of Foster Families for Equality and Reform, 431 U.S. 816, 844, 97 S.Ct. 2094, 2109, 53 L.Ed.2d 14, 35 (1977). That point was emphasized in Lehr v. Robertson, 463 U.S. 248, 261, 103 S.Ct. 2985, 2993, 77 L.Ed.2d 614, 626 (1983), where the Supreme Court held that a stepfather’s actual relationship with a child was the determining factor when considering the degree of protection that the parent-child link must be afforded. The Court stressed that

the importance of the familial relationship, to the individuals involved and to the society, stems from the emotional attachments that derive from the intimacy of daily association, and from the role it plays in ‘promot[ing] a way of life’ through the instruction of children as well as from the fact of blood relationship.

Ubidd

To be sure, prior cases in New Jersey have arisen in the context of a third party taking over the role of an unwilling, absent or incapacitated parent. The question presented here is different; V.C. did not step into M.J.B.’s shoes, but labored alongside her in their family. However, because we view this issue as falling broadly within the contours we have previously described, and because V.C. invokes the “exceptional circumstances” doctrine based on her claim to be a psychological parent to the twins, she *222has standing to maintain this action separate and apart from the statute.

IV

The next issue we confront is how a party may establish that he or she has, in fact, become a psychological parent to the child of a fit and involved legal parent. That is a question which many of our sister states have attempted to answer. Some have enacted statutes to address the subject by deconstructing psychological parenthood to its fundamental elements, including: the substantial nature of the relationship between the third party and the child, see, e.g., Ariz.Rev.Stat. Ann. § 25-415(0(1) (West 2000); whether or not the third party and the child actually lived together, see, e.g., MinnStat. Ann. § 257.022(2b) (West 1999); Tex. Fam.Code Ann. § 102.003(a)(9)(West 1999); and whether the unrelated third party had previously provided financial support for the child, see, e.g. 1999 Nev. Stat. 125A.330(3)(I).

Several state courts have attempted to refine the concept farther. For example, the Supreme Judicial Court of Massachusetts has recently addressed the issue of granting a person it denominated as a child’s defacto parent the right to visitation. E.N.O. v. L.M.M., 429 Mass. 824, 711 N.E.2d 886 (1999). In E.N.O., the court defined a defacto parent as

one who has no biological relation to the child, but has participated in the child’s life as a member of the child’s family. The de facto parent resides with the child and, with the consent and encouragement of the legal parent, performs a share of care taking functions at least as great as the legal parent. The de facto parent ■shapes the child’s daily routine, addresses his developmental needs, disciplines the child, provides for his education and medical care, and serves as a moral guide.

[/A at 891 (citation and footnote omitted) ].

Additionally, the court noted that a defacto parent performs those functions “for reasons primarily other than financial compensation.” Id. at 891 n. 6.

Similarly, in Carter v. Brodrick, 644 P.2d 850 (Alaska 1982), the Alaska Supreme Court defined the nature of the relationship that *223gives rise to a finding that the third party acted as a psychological parent. The court stated that the psychological parent is

one who, on a day-to-day basis, through interaction, companionship, interplay, and mutuality, fulfills the child’s psychological need for an adult. This adult becomes an essential focus of the child’s life, for he is not only the source of the fulfillment of the child’s physical needs, but also the source of his emotional and psychological needs.

[7d at 853 n. 2.]

The most thoughtful and inclusive definition of de facto parenthood is the test enunciated in Custody of H.S.H.-K, 193 Wis.2d 649, 533 N.W.2d 419, 421 (1995), and adopted by the Appellate Division majority here. It addresses the main fears and concerns both legislatures and courts have advanced when addressing the notion of psychological parenthood. Under that test,

[t]o demonstrate the existence of the petitioner’s parenWike relationship with the child, the petitioner must prove four elements: (1) that the biological or adoptive parent consented to, and fostered, the petitioner’s formation and establishment of a parent-like relationship with the child; (2) that the petitioner and the child lived together in the same household; (3) that the petitioner assumed the obligations of parenthood by taking significant responsibility for the child’s care, education and development, including contributing towards the child’s support, without expectation of financial compensation [a petitioner’s contribution to a child’s support need not be monetary]; and (4) that the petitioner has been in a parental role for a length of time sufficient to have established with the child a bonded, dependent relationship parental in nature.

[Custody of H.S.H.-K, supra, 533 77.W.2d at 421 (footnote omitted).]

Recapping, the legal parent must consent to and foster the relationship between the third party and the child; the third party must have lived with the child; the third party must perform parental functions for the child to a significant degree; and most important, a parent-child bond must be forged. We are satisfied that that test provides a good framework for determining psychological parenthood in cases where the third party has lived for a substantial period with the legal parent and her child.6

*224Prong one is critical because it makes the biological or adoptive parent a participant in the creation of the psychological parent’s relationship with the child. Without such a requirement, a paid nanny or babysitter could theoretically qualify for parental status. To avoid that result, in order for a third party to be deemed a psychological parent, the legal parent must have fostered the formation of the parental relationship between the third party and the child. By fostered is meant that the legal parent ceded over to the third party a measure of parental authority and autonomy and granted to that third party rights and duties vis-avis the child that the third party’s status would not otherwise warrant. Ordinarily, a relationship based on payment by the legal parent to the third party will not qualify.

The requirement of cooperation by the legal parent is critical because it places control within his or her hands. That parent has the absolute ability to maintain a zone of autonomous privacy for herself and her child. However, if she wishes to maintain that zone of privacy she cannot invite a third party to function as a parent to her child and cannot cede over to that third party parental authority the exercise of which may create a profound bond with the child.

Two further points concerning the consent requirement need to be clarified. First, a psychological parent-child relationship that is voluntarily created by the legally recognized parent may not be unilaterally terminated after the relationship between the adults ends. Although the intent of the legally recognized parent is critical to the psychological parent analysis, the focus is on that party’s intent during the formation and pendency of the parent-child relationship. The reason is that the ending of the relationship between the legal parent and the third party does not end the bond that the legal parent fostered and that actually *225developed between the child and the psychological parent. Thus, the right of the legal parent

[does] not extend to erasing a relationship between her partner and her child which she voluntarily created and actively fostered simply because after the party’s separation she regretted having done so.

[J.A.L. v. E.P.H., 453 Pa.Super. 78, 682 A.2d 1314, 1322 (1996)(footnote omitted).]

In practice, that may mean protecting those relationships despite the later, contrary wishes of the legal parent in order to advance the interests of the child. As long as the legal parent consents to the continuation of the relationship between another adult who is a psychological parent and the child after the termination of the adult parties’ relationship, the courts need not be involved. Only when that consent is withdrawn are courts called on to protect the child’s relationship with the psychological parent.

The second issue that needs to be clarified is that participation in the decision to have a child is not a prerequisite to a finding that one has become a psychological parent to the child. We make that point because the trial court appeared to view the fact that M.J.B. alone made the decision to have the twins as pivotal to the question of the existence of a psychological parent relationship between V.C. and the children. Although joint participation in the family’s decision to have a child is probative evidence of the legally recognized parent’s intentions, not having participated in the decision does not preclude a finding of the third party’s psychological parenthood. Such circumstances parallel the situation in which a woman, already pregnant or a mother, becomes involved with or marries a man who is not the biological or adoptive father of the child, but thereafter fully functions in every respect as a father. There is nothing about that scenario that would justify precluding the possibility of denominating that person as a psychological parent. It goes without saying that adoption proceedings in these circumstances would eliminate the need for a psychological parent inquiry altogether and would be preferable to court intervention. However, the failure of the parties to *226pursue that option is not preclusive of a finding of psychological parenthood where all the other indicia of that status are present.

Concerning the remaining prongs of the H.S.H.-K. test, we accept Wisconsin’s formulation with these additional comments. The third prong, a finding that a third party assumed the obligations of parenthood, is not contingent on financial contributions made by the third party. Financial contribution may be considered but should not be given inordinate weight when determining whether a third party has assumed the obligations of parenthood. Obviously, as we have indicated, the assumption of a parental role is much more complex than mere financial support. It is determined by the nature, quality, and extent of the functions undertaken by the third party and the response of the child to that nurturance.

Indeed, we can conceive of a case in which the third party is the stay-at-home mother or father who undertakes all of the daily domestic and child care activities in a household with preschool children while the legal parent is the breadwinner engaged in her occupation or profession. Although it is always possible to put a price on the contributions of the stay-at-home parent, see Martha M. Ertman, Commercializing Marriage: A Proposal for Valuing Women’s Work Through Premarital Security Agreements, 77 Tex. L.Rev. 17, 43 (1998)(outlining different economic models for placing value on homemaker’s contribution), our point is that such an analysis is not necessary because it is the nature of what is done that will determine whether a parent-child bond has developed, not how much it is worth in dollars.

It bears repeating that the fourth prong is most important because it requires the existence of a parent-child bond. A necessary corollary is that the third party must have functioned as a parent for a long enough time that such a bond has developed. What is crucial here is not the amount of time but the nature of the relationship. How much time is necessary will turn on the facts of each ease including an assessment of exactly what functions the putative parent performed, as well as at what period *227and stage of the child’s life and development such actions were taken. Most importantly, a determination will have to be made about the actuality and strength of the parent-child bond. Generally, that will require expert testimony.

The standards to which we have referred will govern all cases in which a third party asserts psychological parent status as a basis for a custody or visitation action regarding the child of a legal parent, with whom the third party has lived in a familial setting.

V

This opinion should not be viewed as an incursion on the general right of a fit legal parent to raise his or her child without outside interference. What we have addressed here is a specific set of circumstances involving the volitional choice of a legal parent to cede a measure of parental authority to a third party; to allow that party to function as a parent in the day-to-day life of the child; and to foster the forging of a parental bond between the third party and the child. In such circumstances, the legal parent has created a family with the third party and the child, and has invited the third party into the otherwise inviolable realm of family privacy. By virtue of her own actions, the legal parent’s expectation of autonomous privacy in her relationship with her child is necessarily reduced from that which would have been the case had she never invited the third party into their lives. Most important, where that invitation and its consequences have altered her child’s life by essentially giving him or her another parent, the legal parent’s options are constrained. It is the child’s best interest that is preeminent as it would be if two legal parents were in a conflict over custody and visitation. Zack, supra, 235 N.J.Super. at 432, 563 A.2d 58.

VI

Once a third party has been determined to be a psychological parent to a child, under the previously described standards, he or she stands in parity with the legal parent. Ibid. Custody *228and visitation issues between them are to be determined on a best interests standard giving weight to the factors set forth in N.J.S.A. 9:2-4:

the parents’ ability to agree, communicate and cooperate in matters relating to the child; the parents’ willingness to accept custody and any history of unwillingness to allow parenting time not based on substantiated abuse; the interaction and relationship of the child with its parents and siblings; the history of domestic violence, if any; the safety of the child and the safety of either parent from physical abuse by the other parent; the preference of the child when of sufficient age and capacity to reason so as to form an intelligent decision; the needs of the child; the stability of the home environment offered; the quality and continuity of the child’s education; the fitness of the parents; the geographical proximity of the parents’ homes; the extent and quality of time spent with the child prior to or subsequent to the separation; the parents’ employment responsibilities; and the age and number of the children.

That is not to suggest that a person’s status as a legal parent does not play a part in custody or visitation proceedings in those circumstances. Indeed, as the Appellate Division stated in Todd v. Sheridan, 268 N.J.Super. 387, 399, 633 A.2d 1009 (App. Div.1993):

No fair reading of [Zack ] prohibits a judge from considering any aspect of either party’s character or status in assessing the best interests of the child. N.J.S.A 9:2-4. Obviously, as the trial judge recognized, he was not free to give an absolute preference to [the natural parent] because that would have undermined the salutary aims Zack was meant to accomplish. However, he was free to consider [the natural parent’s] status as [the child’s] biological father as one weight in the best interests balance.

We agree. The legal parent’s status is a significant weight in the best interests balance because eventually, in the search for self-knowledge, the child’s interest in his or her roots will emerge. Thus, under ordinary circumstances when the evidence concerning the child’s best interests (as between a legal parent and psychological parent) is in equipoise, custody will be awarded to the legal parent.

Visitation, however, will be the presumptive rule, subject to the considerations set forth in N.J.S.A. 9:2-4, as would be the case if two natural parents were in conflict. As we said in Beck v. Beck, 86 N.J. 480, 495, 432 A.2d 63 (1981), visitation rights are almost “invariably” granted to the non-custodial parent. Indeed, *229“[t]he denial of visitation rights is such an extraordinary proscription that it should be invoked only in those exceptional cases where it clearly and convincingly appears that the granting of visitation will cause physical or emotional harm to the children or where it is demonstrated that the parent is unfit.” Barron v. Barron, 184 N.J.Super. 297, 303, 445 A.2d 1182 (Ch.Div.1982); see also, Wilke v. Culp, 196 N.J.Super. 487, 503, 483 A.2d 420 (App. Div.1984) (requiring clear and convincing evidence of exceptional circumstance to warrant denial of visitation). Once the parent-child bond is forged, the rights and duties of the parties should be crafted to reflect that reality.

VII

Ordinarily, when we announce a new standard, we remand the case to the trial court for reconsideration. That is not necessary here. This full record informs us that M.J.B. fostered and cultivated, in every way, the development of a parent-child bond between V.C. and the twins; that they all lived together in the same household as a family; that despite M.J.B.’s after-the-fact characterizations of V.C. as a “stranger” and a “nanny,” V.C. assumed many of the day-to-day obligations of parenthood toward the twins, including financial support; and that a bonded relationship developed between V.C. and the twins that is parental in nature. In short, we agree with the Appellate Division that V.C. is a psychological parent to the twins.

That said, the issue is whether V.C. should be granted joint legal custody and visitation. As we have stated, the best interests standard applies and the factors set forth in N.J.S.A. 9:2-4 come into play. Under that statute V.C. and M.J.B. are essentially equal. Each appears to be a fully capable, loving parent committed to the safety and welfare of the twins. Although there is animosity between V.C. and M.J.B., that is not a determinant of whether VC. can continue in the children’s lives.

We note that V.C. is not seeking joint physical custody, but joint legal custody for decision making. However, due to the *230pendency of this case, V.C. has not been involved in the decision-making for the twins for nearly four years. To interject her into the decisional realm at this point would be unnecessarily disruptive for all involved. We will not, therefore, order joint legal custody in this ease.

Visitation, however, is another matter. V.C. and the twins have been visiting during nearly all of the four years since V.C. parted company from M.J.B. Continued visitation in those circumstances is presumed. Nothing suggests that V.C. should be precluded from continuing to see the children on a regular basis. Indeed, it is clear that continued regular visitation is in the twins’ best interests because V.C. is their psychological parent. We thus affirm the judgment of the Appellate Division.

VIII

Third parties who live in familial circumstances with a child and his or her legal parent may achieve, with the consent of the legal parent, a psychological parent status vis-a-vis a child. Fundamental to a finding of the existence of that status is that a parent-child bond has been created. That bond cannot be unilaterally terminated by the legal parent. When there is a conflict over custody and visitation between the legal parent and a psychological parent, the legal paradigm is that of two legal parents and the standard to be applied is the best interests of the child.

Establishing psychological parenthood is not an easy task and the standards we have adopted should be scrupulously applied in order to protect the legal parent-child relationship.

O’HERN, J.,

concurring.

I concur in the opinion and judgment of the Court. I agree that the degree of intrusion on parental autonomy is properly resolved here by the standard set forth in the Court’s opinion. I adhere to the views expressed in my dissenting opinion in Watkins v. Nelson, 163 N.J. 235, 748 A.2d 558 (2000), that the determination of custody following the death of a custodial parent requires a *231different standard in order to protect a grieving child from being removed from her home before she may be able to bear the twin losses of a parent and the familiar presence of those family members who, until then, had provided her nurture and love.

LONG, J.,

concurring.1

Sociologists who study the family have concluded that, like all social institutions, it has certain attributes or characteristics. Two of those are the stability of the parents’ relationship and parental nurturing. Ernest W. Burgess and Harvey J. Locke, The Family: From Institution to Companionship, 651 (1953); Lee E. Teitelbaum, Family History and Family Law 1985 Wis. L.Rev. 1135, 1142-43 (1985). A third characteristic identified by scholars is the family’s claim to autonomous privacy. Craig W. Christensen, If Not Marriage ? On Securing Gay & Lesbian Family Values by a “Simulacrum of Marriage”, 66 Fordham L.Rev. 1699, 1717 (1998). That privacy association spawned the family’s “awareness of itself as a precious emotional unit” demanding isolation from outside intrusion. Id. at 1718 (quoting Edward Shorter, The Making of the Modem Family, 227 (1975)). It also resulted in a concept of domestic privacy with an objective meaning; the family not only experienced itself as private, but was recognized as such by society. Teitelbaum, supra, 1985 Wisc. L.Rev. at 1144.

The dominant model of the American family, both emotionally and legally, is the nuclear family — “a social institution with a sort of corporate identity: a collective of husband, wife, and children.” Teitelbaum, supra, 1985 Wise. L.Rev. at 1138. Over time, because of the dominance of the nuclear family in our collective consciousness, the attributes of family life came to be associated with it to the exclusion of any other model:

The stability of the companionate couple and the sustenance of parental nurturing were to become the quintessential American “family values.” As a necessary corollary, in aid and protection of the values, came recognition of the family as an *232autonomous bastion of privacy. Although the nuclear family was merely the perceived repository of these valued characteristics, eventually it came to be viewed by many as though it represented a value on its own right.

[Christensen, supra, 66 Fordham L.Rev, at 1718.]

That is a critical point for we should not be misled into thinking that any particular model of family life is the only one that embodies “family values.” Those qualities of family life on which society places a premium — its stability, the love and affection shared by its members, their focus on each other, the emotional and physical care and nurturance that parents provide their offspring, the creation of a safe harbor for all involved, the wellspring of support family life provides its members, the ideal of absolute fealty in good and bad times that infuses the familial relationship (all of which justify isolation from outside intrusion)— are merely characteristics of family life that, except for its communal aspect, are unrelated to the particular form a family takes.

Those attributes may be found in biological families, step-families, blended families, single parent families, foster families, families created by modern reproductive technology, and in families made up of unmarried persons. What is required is the creation of “an intimate familial relationship that is stable, enduring, substantial and mutually supportive, ... one that is cemented by strong emotional bonds and provides deep and pervasive emotional security.” Dunphy v. Gregor, 136 N.J. 99, 115, 642 A.2d 372 (1994).

Generally, such a relationship is built on a commitment by the adults to live as a family, accompanied by the actuality of family life, involving the love, care, nurturance, protection, safety and education of the children in their care. The relationship that develops between children and those who function as their parents, within that setting, ordinarily creates a life-long bond between them.

That bond is not the result of the sexual orientation of the adults or of their marital status. It does not arise solely from biology or legal adoption. Rather, it is borne out of the daily toil parents engage in to keep their children healthy and safe from *233harm; out of the love and attention provided to the children; and out of the unconditional regard returned by the children to the parental figures. When the bond exists, the parents and the children become a family — an entity greater than the sum of its parts.

What is crucial is to realize that a .parent-child bond is not simply a court-bestowed determination for the purpose of resolving litigation. Certainly, it affects the status of custody and visitation litigation, but that is secondary. The finding of the existence of such a bond reflects that the singular emotional and spiritual connection, ordinarily only expected in the relationship of a legal parent and child, has been created between an adult and a child who are not related by blood or adoption. It is different from the bond between great friends or the bond between uncle and nephew, aunt and niece. It is the special connection between a parent and a child.

That there can be such a bond between a child and someone other than the child’s legal parent is clear. Mere legality, whether by way of biology or adoption, is not an exclusive determinant of the existence of a parent-child relationship:

It has been recognized that the psychological aspect of parenthood is more important in terms of the development of the child and its mental and emotional health than the coincidence of biological or natural parenthood.

[Sees v. Baber, 74 N.J. 201, 222, 377 A.2d 628 (1977) (citing Goldstein, Freud & Solnit, Beyond the Best Interests of the Child (1973)).]

See also Smith v. Organization of Foster Families for Equality and Reform, 431 U.S. 816, 843, 97 S.Ct. 2094, 2109, 53 L.Ed.2d 14, 34 (1977)(“[B]iological relationships are not exclusive determination of the existence of a family.”).

Moreover, our judicial system has long acknowledged that “courts are capable of dealing with the realities, not simply the legalities, of relationships” and have adjusted the rights and duties of parties in relation to that reality. Dunphy, supra, 136 N.J. at 111, 642 A.2d 372 (recognizing standing of unmarried cohabitant in bystander liability ease); see also Crowe v. DeGioia, 90 N.J. 126, 133, 447 A.2d 173 (1982) (recognizing enforceability of support *234agreement between non-married cohabitants). As the Appellate Division aptly noted: ‘When social mores change, governing statutes must be interpreted to allow for those changes in a manner that does not frustrate the purposes behind their enactment.” Adoption of Two Children by H.N.R., 285 N.J.Super. 1, 10, 666 A.2d 535 (App.Div.l995)(quoting Adoptions of B.L.V.B. & E.L.V.B., 160 Vt. 368, 628 A.2d 1271, 1275 (1993)). See also J.A.L. v. E.P.H., 453 Pa.Super. 78, 682 A.2d 1314, 1320 (1996) (urging flexibility to adapt to interests of each child given advent of nontraditional families).

In other words, the nuclear family of husband and wife and their offspring is not the only method by which a parent-child relationship can be created. The values attached to family life, although properly attributed to the nuclear family model, can exist in other settings, including families created by unmarried persons regardless of their sexual orientation.

In the final analysis it is reality and not mere legality that should dictate who can be denominated as a psychological parent. Once the unique and profound parent-child bond is found to have been forged, the relationship between the psychological parent and the child is, for all intents and purposes, that of parent and child. It is only against that backdrop that the legal notion of psychological parenthood can be fully comprehended.

For affirmance — Chief Justice PORITZ and Justices O’HERN, GARIBALDI, STEIN, COLEMAN, LONG and YERNIERO — 7.

Opposed — None.

The opinion of the court was delivered by

KENNEDY, J.A.D.

This appeal arises from a custody and visitation dispute between D.L.M. (D.M.), a step-parent of now twelve-year old Arthur, on the one hand, and K.A.F., the biological mother of Arthur, and F.D., the adoptive parent of Arthur and former domestic partner of K.A.F., on the other. D.M., a subsequent and now former domestic partner of K.A.F., filed a complaint in the Family Part seeking custodial and visitation rights as a “psychological parent” of Arthur pursuant to V.C. v. M.J.B., 163 N.J. 200, 748 A.2d 539, cert, denied, 531 U.S. 926, 121 S.Ct. 302, 148 L.Ed.2d 243 (2000). K.A.F. and F.D. filed an answer and opposed D.M.’s complaint.

Although the parties submitted highly detailed certifications and other documents in support of their respective positions, which clearly raised many material factual issues that would have warranted a plenary hearing, the Family Part judge dismissed D.M.’s complaint on a motion for summary judgment, having determined that “there’s no genuine issue of material fact” suggesting that F.D. had ever consented to a psychological parent relationship between D.M. and Arthur, and that “[w]hen two involved parents and fit parents are involved in [the child’s] life an application under V.C. ... require[s] both to consent” to the creation of the claimed relationship before a court may even address the issue. We disagree with both conclusions, and therefore we reverse the order of dismissal and remand this matter for a plenary hearing.

Because of the clearly contested facts, which the judge and the parties acknowledge, we recite only a brief history of the relationships of the parties as gleaned from the materials presented. Many additional factual averments material to the question before us are contained in the parties’ opposing certifications. We shall thereafter review the principles of law which guide the Family Part’s determinations in such cases.

*128I.

K.A.F. and F.D. had been romantically involved since 1998, and in 1999 began living together. In 2000, the two women bought a house and thereafter decided to have a child. They made arrangements with an entity to obtain a sperm donor, and they agreed that K.A.F. would carry the child. All went as planned, and Arthur was born in December 2002.

Although their relationship became strained thereafter, causing them to begin living separately in June 2004, K.A.F. and F.D. apparently harbored hope for a reconciliation at some time and agreed to share equal time with Arthur and make joint decisions as to his care and welfare. On March 3, 2005, F.D. formally adopted Arthur with the consent of K.A.F., and in November of that year Arthur’s birth certificate was issued listing both K.A.F. and F.D. as his parents.2

In the meantime, D.M., a friend of both F.D. and K.A.F., became romantically involved with K.A.F. and they moved in together in the Fall of 2004. They subsequently bought a home and formalized their domestic partnership in May 2006.

According to D.M., she and K.A.F. “equally shared parental responsibility” for Arthur when he resided in their home. K.A.F. concedes that D.M. “participated in aspects of [Arthur’s] care,” but disputes the extent of the role D.M. actually undertook. F.D. also concedes that she has no direct knowledge about the extent of D.M.’s role with Arthur when he lived with K.A.F. and D.M., but claims “[a]t all times I have adamantly and wholeheartedly opposed [D.M.’s] attempts to parent” Arthur.3

*129In any event, strains developed over time in the relationship between K.A.F. and D.M., resulting in D.M. leaving their home in March 2010. From that date through May 2011, D.M. had more or less regular visitation with Arthur, including weekly overnight stays. However, this arrangement began to end in June 2011, and ceased altogether in November 2011, amidst an angry confrontation between D.M. and K.A.F. In January 2012, K.A.F. advised D.M. in writing that she would no longer allow her to have any contact with Arthur.

On October 12, 2011, the court entered judgment dissolving the domestic relationship between K.A.F. and D.M.4 In February 2012, D.M. filed a complaint in the Family Part seeking “joint custody” of Arthur and a “reasonable visitation schedule,” as well as other relief. K.A.F. and F.D. opposed the complaint, and, as we have explained, the Family Part judge dismissed the complaint on a motion for summary judgment. This appeal followed.

II.

As noted earlier, the judge made two rulings which we are asked to review: the first ruling is that there is no genuine issue of material fact suggesting that F.D. ever consented to the creation of a psychological parent relationship between D.M. and Arthur; and the second is that where there are two fit and involved parents, both must have consented to the creation of a psychological parent relationship before a third party can maintain an action for visitation and custody based on the existence of that relationship. Although these two issues are intertwined, we shall examine them separately for purposes of clarity. Because the *130question of consent is a matter of first impression, we shall begin there.

A.

Plainly stated, the issue is whether F.D.’s alleged lack of consent to D.M.’s performance of parental duties as to Arthur, if true, necessarily deprives D.M. of standing to bring this action. We hold it does not.

K.A.F. and F.D. argue that D.M. cannot attain the legal status of a psychological parent because F.D. did not consent to D.M. forming a parent-child relationship with Arthur. Their argument, which was adopted by the Family Part judge, is that where there are two fit and active parents, both legal parents must have consented to the development of a psychological parent relationship between a third party and their child in order for the third party to have standing to advance that claim in the first instance. They argue that the consent of only one custodial parent is not enough. We fail to perceive any basis for this argument either in the law or the policies underlying the concept of a psychological parent.

The theory of psychological parentage was first enunciated in Sorentino v. Family & Children’s Soc. of Elizabeth, 72 N.J. 127, 367 A.2d 1168 (1976), where our Supreme Court recognized that there is a “serious potential for psychological harm to young children if they are removed from a foster home where they had lived and been nurtured during their early years.” Zack, supra, 235 N.J.Super. at 430, n. 3, 563 A.2d 58.

In Sorentino, the sixteen year-old mother of a newborn child surrendered the child for temporary foster care to the defendant agency after the child’s natural father, then eighteen years of age, refused to marry her. 72 N.J. at 129, 367 A.2d 1168. She thereafter surrendered the child for adoption under circumstances the trial court later found to be coercive. Ibid. The natural father learned of the surrender of the child for adoption within two *131months of the child’s birth, went to the agency to lodge his protest, and was rebuffed. Ibid.

Fourteen months later, the natural parents, having married, filed a complaint to regain custody of their child. Id. at 130, 367 A.2d 1168. The trial judge found both natural parents fit to take custody, and determined that the mother had surrendered the child as a consequence of undue pressure by the defendant agency and that the father, being known and acknowledging parenthood, had been denied his “constitutional rights.” Ibid.

Although no formal adoption proceedings had been instituted by the time the case reached the Supreme Court over two years after the child’s birth, the child had remained in the custody of the prospective adoptive parents. The Supreme Court held that the trial judge had a sufficient evidential basis for his findings of fact and that ordinarily such a determination would warrant “an immediate vesting of custody of the child in the natural parents.” Id. at 131, 367 A.2d 1168. The Court then explained,

We are given pause, however, in adjudicating such a summary and drastic change in the life circumstances of this child, now 31 months old. We are confronted with the potentiality of serious psychological injury to the child, in the evaluation of which substantial significance should attach to the length of time the child has been with the prospective adopting parents and to the quality of the developing relationship. See Commonwealth ex rel. Bankert v. Children’s Services, 224 Pa.Super. 556 [307 A.2d 411] (Super.Ct.1973); Note, “Increasing the Rights of Foster Parents,” 36 U. Pitt. L.Rev. 715, 723 (1975). Cf. In re Adoption of a Child by R.D., supra, 127 N.J.Super. [311] at 316 [317 A.2d 382 (1974) ]; In re P, and wife, 114 N.J.Super. 584, 593 et seq. [277 A.2d 566] (App.Div.1971); Note, “Alternatives to ‘Parental Right’ in Child Custody Disputes Involving Third Parties,” 73 Yale L.J. 151, 158 et seq. (1963). We are not suggesting that such a potentiality suffices as a matter of law to justify a reversal in this case. However, the potentiality does require a hearing and determination on the issue.

[Id. at 131-32, 367 A.2d 1168.]

The Court went on to hold that the “possibility of serious psychological harm to the child in this case transcends all other considerations.” Id. at 132, 367 A.2d 1168.

While a natural parent’s right to the care, custody, and control of his or her child is a “fundamental right to parental autonomy,” N.J. Div. of Youth & Family Servs. v. P.W.R., 205 *132 N.J. 17, 38,11 A.3d 844 (2011), and is recognized as “a fundamental liberty interest protected by the Due Process Clause of the Fourteenth Amendment to the United States Constitution[,]” Moriarty v. Bradt, 177 N.J. 84, 101, 827 A.2d 203 (2003), cert, denied, 540 U.S. 1177, 124 S.Ct. 1408, 158 L.Ed.2d 78 (2004); see also Prince v. Massachusetts, 321 U.S. 158, 166, 64 S.Ct. 438, 442, 88 L.Ed. 645, 652 (1944); Watkins v. Nelson, 163 N.J. 235, 245, 748 A.2d 558 (2000); V.C., supra, 163 N.J. at 218, 748 A.2d 539, that right, as noted in Sorentino, is not absolute. The presumption in favor of the parent will be overcome by “a showing of gross misconduct, unfitness, neglect, or ‘exceptional circumstances’ affecting the welfare of the child[.]” Watkins, supra, 163 N.J. at 246, 748 A.2d 558.

In V.C., our Supreme Court explained that “[s]ubsumed within” the category of “exceptional circumstances” is the “subset known as the psychological parent cases in which a third party has stepped in to assume the role of the legal parent ....” V.C., supra, 163 N.J. at 219, 748 A.2d 539. The “exceptional circumstances” exception does not require proof that a parent is unfit. The Court has explicitly stated that “exceptional circumstances” may rebut the presumption in favor of a parent seeking custody even if there is not a basis for terminating parental rights on statutory grounds and, indeed, even if the parent is “deemed to be a fit parent____” Watkins, supra, 163 N.J. at 246-48, 748 A.2d 558; see also V.C., supra, 163 N.J. at 219, 748 A.2d 539; Sorentino, supra, 72 N.J. at 131-32, 367 A.2d 1168. “ ‘[E]xceptional circumstances’ based on the probability of serious psychological harm to the child may deprive a parent of custody.” Watkins, supra, at 246-17, 748 A.2d 558 (citing Sorentino, supra, 72 N.J. at 131-32, 367 A.2d 1168).

Although observing that the full scope of the “exceptional circumstances” exception remained undefined and would evolve through a case-by-case development, the Court also clarified its intent that the scope of the exception was not so narrow as to be limited to cases such as Sorentino, in which the parents were *133“complete strangers” to the child or unfit. Id. at 247, 748 A.2d 558. Specifically, “exceptional circumstances” may exist “if a change in custody will cause serious psychological harm to a child.” Ibid.

Psychological parent cases, as noted, constitute a subset of “exceptional circumstances” cases, in recognition of children’s “strong interest in maintaining the ties that connect them to adults who love and provide for them.” V.C., supra, 163 N.J. at 219, 221, 748 A.2d 539. A third party may become a psychological parent as a result of “the volitional choice of a legal parent to cede a measure of parental authority to a third party[.]” Id. at 227, 748 A.2d 539. Once a third party becomes a psychological parent, he or she “steps into [the] shoes” of a natural parent, id. at 223-24 n. 6, 748 A.2d 539, and determinations between the natural and psychological parent are made pursuant to a best interests analysis. Id. at 227-28, 748 A.2d 539.

Four essential requirements must be satisfied for one to become a psychological parent:

[T]he legal parent must consent to and foster the relationship between the third party and the child; the third party must have lived with the child; the third party must perform parental functions for the child to a significant degree; and most important, a parent-child bond must be forged.

[Id. at 223, 748 A.2d 539.]

These criteria are designed “to evaluate whether a third party has become a ‘psychological parent’ to a child of a fit and involved legal parent, and thus has standing to bring a custody suit.” P.B. v. T.H., 370 N.J.Super. 586, 595, 851 A.2d 780 (App.Div.2004).

As the Supreme Court explained in V.C.,

[a]t the heart of the psychological parent cases is a recognition that children have a strong interest in maintaining the ties that connect them to adults who love and provide for them. That interest, for constitutional as well as social purposes, lies in the emotional bonds that develop between family members as a result of shared daily life. Smith v. Org. of Foster Families for Equal, and Reform, 431 U.S. 816, 844, 97 S.Ct. 2094, 2109, 53 L.Ed.2d 14, 35 (1977). That point was emphasized in Lehr v. Robertson, 463 U.S. 248, 261, 103 S.Ct. 2985, 2993, 77 L.Ed.2d 614, 626 (1983), where the Supreme Court held that a stepfather’[s] actual relationship with *134a child was the determining factor when considering the degree of protection that the parent-child link must be afforded.

[V.C., supra, 163 N.J. at 221, 748 A.2d 539.]

Where custody is sought by a third party, the court must conduct a two-step analysis. The first step requires the court to determine whether the presumption in favor of the legal parent is overcome by either a showing of “unfitness” or “exceptional circumstances.” Watkins, supra, 163 N.J. at 247, 254, 748 A.2d 558. In Watkins, the Court emphasized that one of those grounds must be proven before the trial court proceeds to the second step of the analysis. Id. at 237, 748 A.2d 558 (“That presumption can be rebutted by proof of gross misconduct, abandonment, unfitness, or the existence of ‘exceptional circumstances,’ but never by a simple application of the best interests test.”). It is only after that presumption has been rebutted that the court proceeds to the determination whether awarding custody or other relief to the third party would promote the best interests of the child. Id. at 254, 748 A.2d 558; P.B., supra, 370 N.J.Super. at 594, 851 A.2d 780; see also Moriarty, supra, 177 N.J. at 117, 827 A.2d 203 (noting that when the presumption in favor of parental decision-making is overcome, court should determine a visitation schedule based upon the child’s best interests).

With this background, we turn to the question of whether both legal parents must consent, or whether the consent of only one “fit and involved” legal parent is sufficient to support a claim by a third party of psychological parenthood. From the perspective of simple logic, it would be difficult to ignore the “psychological harm” a child might suffer because he is deprived of the care of a psychological parent simply because only one of his “legal parents” consented to the relationship.

The clear policy underlying the Court’s rulings in Sorentino, Watkins, and V.C. is that “exceptional circumstances” may require recognition of custodial or visitation rights of a third party with respect to a child where the third party has performed parental duties at home for the child, with the consent of a legal *135parent, however expressed, for such a length of time that a parent-child bond has developed, and terminating that bond may cause serious psychological harm to the child. Sorentino, supra, 72 N.J. at 131-32, 367 A.2d 1168; Watkins, supra, 163 N.J. at 246-47, 748 A.2d 558; V.C., supra, 163 N.J. at 219, 223-28, 748 A.2d 539. It is fatuous to suggest that this fundamental policy may be subverted, and that a court may not even examine the issue at a plenary hearing, where one of the child’s legal parents colorably claims lack of consent, in circumstances where the other legal parent has consented. If we were to accept the arguments of K.A.F. and F.D., a court would be powerless to avert harm to a child through the severance of the child’s parental bond with a third party. That result is not supported by the Court’s carefully crafted policy governing such cases.

The Family Part judge suggested in his ruling that if both fit and involved parents do not consent, a child might then in the future have “three legal parents, four legal parents!,]” depending on the romantic vagaries of the original legal parents. To this argument, we observe that the Court in V.C. stated that establishing psychological parenthood is “not an easy task[.]” V.C., supra, 163 N.J. at 230, 748 A.2d 539. Moreover, we have confidence that our Family Part judges have the expertise and discretion to appropriately address such issues as they arise.

Of some significance to the case before us, the Court in Sorentino also expressly clarified that its prior holdings did not establish that “the right of custody over a child by a nonforsaking parent was necessarily inviolable as against a showing of the probability of serious harm to the child if such custody was awarded.” Sorentino, supra, 72 N.J. at 132, 367 A.2d 1168. Plainly understood, this statement by the Court emphasizes that the transcendent importance of preventing harm to a child weighs more heavily in the balance then the fundamental custody rights of a non-forsaking parent. It also supports the proposition that where at least one “legal parent” of a child has, by his or her actions, effectively consented to the creation of a psychological parent *136relationship between that child and a third-party, the third party has standing to pursue the claim.

Further, the Court in V.C. declared that it was explicitly addressing

a specific set of circumstances involving the volitional choice of a legal parent to cede a measure of parental authority to a third party; to allow that party to function as a parent in the day-to-day life of the child; and to foster the forging of a parental bond between the third party and the child. In such circumstances, the legal parent has created a family with the third party and the child, and has invited the third party into the otherwise inviolable realm of family privacy. By virtue of her own actions, the legal parent’s expectation of autonomous privacy in her relationship with her child is necessarily reduced from that which would have been the case had she never invited the third party into then- lives. Most important, where that invitation and its consequences have altered her child’s life by essentially giving him or her another parent, the legal parent’s options are constrained. It is the child’s best interest that is preeminent as it would be if two legal parents were in a conflict over custody and visitation.

[V.C., supra, 163 N.J. at 227, 748 A.2d 539.]

The Court’s continual reference to “a” legal parent or “the” legal parent in the singular strengthens our conclusion that the consent of both legal parents is not required to create a psychological parent relationship between their child and a third party.

Nothing in the historical development of the psychological parent policy, in the policy itself, or in the language of the Court, therefore, suggests that both legal parents must consent before a court may consider a claim of psychological parenthood by a third party. Rather, it is sufficient if only one of the legal custodial parents has consented to the parental role of the third party. In that circumstance, a legal custodial parent has voluntarily created the relationship and thus has permitted the third party to enter the zone of privacy between her and her child.

By so holding, we do not discount the importance of F.D.’s “consent”, or lack thereof, in the case before us.

The requirement of cooperation by the legal parent is critical because it places control within his or her hands. That parent has the absolute ability to maintain a zone of autonomous privacy for herself and her child. However, if she wishes to maintain that zone of privacy she cannot invite a third party to function as a parent to her child and cannot cede over to that third party parental authority the exercise of which may create a profound bond with the child.

*137 [V.C., supra, 163 N.J. at 224, 748 A.2d 539.]

It may be used by a trial court, in an appropriate context, as one factor among many in determining whether a third party has established that he or she is a psychological parent of a child, and, if so, whether the “best interests” of the child warrant some form of custody or visitation. See Id. at 228, 748 A.2d 539 (enumerating the factors under N.J.S.A. 9:2-4) and Todd v. Sheridan, 268 N.J.Super. 387, 399, 633 A.2d 1009 (App.Div.1993) (a natural parent’s status is “one weight in the best interests balance”). We would expect, however, that in most cases, the longer and more established the parental role of a third party has become, the lack of consent by one legal parent would diminish in analytical significance.

Once the court has determined that the role of psychological parent exists, the question of what relief is warranted entails consideration of the best interests of the child. In V.C. the Supreme Court held:

Visitation, however, will be the presumptive rule, subject to the considerations set forth in N.J.S.A. 9:2-4 as would be the case if two natural parents were in conflict. As we said in Beck v. Beck, 86 N.J. 480, 495 [432 A.2d 63] (1981), visitation rights are almost “invariably” granted to the non-custodial parent. Indeed, “[tjhe denial of visitation rights is such an extraordinary proscription that it should be invoked only in those exceptional cases where it clearly and convincingly appears that the granting of visitation will cause physical or emotional harm to the children or where it is demonstrated that the parent is unfit.” Barron v. Barron, 184 N.J.Super. 297, 303 [445 A.2d 1182] (Ch.Div.1982); see also, Wilke v. Culp, 196 N.J.Super. 487, 503 [483 A.2d 420] (App.Div.1984) (requiring convincing evidence of exceptional circumstance to warrant denial of visitation). Once the parent-child bond is forged, the rights and duties of the parties should be crafted to reflect that reality.

[V.C., supra, 163 N.J. at 228-29, 748 A.2d 539.]

B.

We next turn to the question of whether the court should have granted a plenary hearing. A court, when presented with conflicting factual averments material to the issues before it, ordinarily may not resolve those issues without a plenary hearing. While we respect the family court’s special expertise, a court may *138not make credibility determinations or resolve genuine factual issues based on conflicting affidavits. Conforti v. Guliadis, 245 N.J.Super. 561, 565-66, 586 A.2d 318 (App.Div.1991), affd in part and modified in part on other grounds, 128 N.J. 318, 608 A.2d 225 (1992). When the evidence discloses genuine material issues of fact, the failure to conduct a plenary hearing to resolve those issues requires us to reverse and remand for such a hearing. See, e.g., Fusco v. Fusco, 186 N.J.Super. 321, 329, 452 A.2d 681 (App.Div.1982); Tancredi v. Tancredi, 101 N.J.Super. 259, 262, 244 A.2d 139 (App.Div.1968), superseded by statute on other grounds, N.J.S.A. 2A:17-56.23a, as recognized in Mallamo v. Mallamo, 280 N.J.Super. 8, 13, 654 A.2d 474 (App.Div.1995).

Moreover, a plenary hearing is particularly important when the submissions show there is a genuine and substantial factual dispute regarding the welfare of children. See Hand v. Hand, 391 N.J.Super. 102, 105, 917 A.2d 269 (App.Div.2007); and R. 5:8-6 (requiring the court to “set a hearing date” if it “finds that the custody of children is a genuine and substantial issue”). Even where a party waives a plenary hearing, “the matter of visitation is so important, especially during the formative years of a child, that if a plenary hearing will better enable a court to fashion a plan of visitation more commensurate with a child’s welfare, nonetheless it should require it.” Wagner v. Wagner, 165 N.J.Super. 553, 555, 398 A.2d 918 (App.Div.1979).

When an issue of child custody or parenting time is presented and “[t]he trial court’s order was based on its evaluation of conflicting affidavits and adopt[ed] the assertions of one party over the other without the benefit of a plenary hearing,” Mackowski v. Mackowski, 317 N.J.Super. 8, 11, 721 A.2d 12 (App.Div. 1998), we have reversed and remanded for a hearing. Id. at 14, 721 A.2d 12; see also Wilke v. Culp, 196 N.J.Super. 487, 501, 483 A.2d 420 (App.Div.1984) (finding that “[i]t is basic that a case should not be decided merely on the basis of conflicting affidavits”), certif. denied, 99 N.J. 243, 491 A.2d 728 (1985).

*139In the matter before us, the Family Part judge found that the detailed certifications before him did not give rise to a genuine issue of fact showing that F.D. had consented to D.M.’s assumption of ongoing parental duties with respect to Arthur. While the cause of action brought by D.M. is not “immune to the summary judgment procedure,” A.F. v. D.L.P., 339 N.J.Super. 312, 320, 771 A.2d 692 (App.Div.2001), it is nonetheless clear that D.M. averred sufficient facts that, if credited at a plenary hearing, would establish her standing to pursue her complaint.

By way of example, D.M. has asserted that she and K.A.F. lived in a familial setting with Arthur for over six years, from the time he was eighteen months old, and that she performed many normal parental duties during that time with the full consent and encouragement of K.A.F. She further asserted that “[F.D.] assented to” her assumption of parental duties for Arthur, and “knew that [she] was parenting [Arthur]” and participating in all “major decisions” pertaining to his welfare.

F.D. and K.A.F. dispute these averments of fact, thereby giving rise to the necessity of a plenary hearing. In addition, F.D.’s argument that she never explicitly consented to D.M.’s parental role, and expressly objected to D.M.’s assumption of any parental function, does not obviate the necessity for a plenary hearing. As we held above, F.D.’s explicit consent is unnecessary, and a court may find her assertion that she had always expressly objected to D.M.’s participation in the parenting of Arthur to be untrue.

A parent’s “consent” to the creation of a psychological parent bond need not be explicit. In V.C., our Supreme Court explained,

Obviously, the notion of consent will have different implications in different factual settings. For example, where a legal parent voluntarily absents herself physically or emotionally from her child or is incapable of performing her parental duties, those circumstances may constitute consent to the parental role of a third party who steps into her shoes relative to the child. As in all psychological parent cases, the outcome in such a ease will depend on the full factual complex and the existence of the other factors contained in the test.

[V.C., supra, 163 N.J. at 223 n. 6, 748 A.2d 539.]

*140Moreover, the focus of the court’s inquiry must always be the intent and actions of a legal parent during the formation of the disputed relationship and not the later expressions of a legal parent about his or her desire to sever the relationship. “The reason is that the ending of the relationship between the legal parent and the third party does not end the bond that the legal parent fostered and that actually developed between the child and the psychological parent.” Id. at 224-25, 748 A.2d 539.

In P.B., we extended the holding of V.C. to a neighbor who asserted custody and visitation rights as the psychological parent of a child, and explained that where the issue of standing to assert the claim is contested, “as with any summary judgment motion, a plenary hearing to resolve disputed factual issues is necessary.” P.B., supra, 370 N.J.Super. at 599, 851 A.2d 780.

Guided by these principles, we determine the Family Part judge erred in concluding there were no genuine issues of material fact as to F.D.’s consent to the creation of the disputed relationship. F.D.’s certification that she had not consented, nor D.M.’s concession that F.D. was generally “resistant” to her involvement in parenting Arthur, are not a sufficient basis for granting summary judgment in this case.

III.

We reverse the order of the Family Part which dismissed D.M.’s complaint and we remand for a plenary hearing on whether D.M. is a psychological parent of Arthur and, if so, whether the best interests of Arthur require accommodation through a sharing of custody, visitation, or other relief. We also reverse the order for counsel fees entered by the Family Part in favor of K.A.F. and F.D. Counsel fees and costs, if any, will abide the outcome of the plenary hearing. On remand, the matter should be assigned to a different Family Part judge. See Entress v. Entress, 376 N.J.Super. 125, 133, 869 A.2d 451 (App.Div.2005) (“[i]n an abundance of caution, we direct that this matter be remanded to a different judge for the plenary hearing to avoid the appearance of bias or *141prejudice based upon the judge’s prior involvement with the matter”).

Reversed and remanded. We do not retain jurisdiction.

TERNUS, Justice.

The primary issue raised on appeal of the district court’s decree in this dissolution action is whether the court properly determined the rights of Arthur (known as Trip) and Tamera Witten with respect to the parties’ frozen human embryos stored *772at a medical facility. While we agree with Tamera that the informed consent signed by the parties at the request of the medical facility does not control the current dispute between the donors over the use or disposition of the embryos, we reject Tarn-era’s request that she be allowed to use the embryos over Trip’s objection. Therefore, we affirm the trial court’s order that neither party may use or dispose of the embryos without the consent of the other party.

On Trip’s cross-appeal, we modify the court’s property division, eliminating the cash payment from Trip to Tamera and substituting an equivalent portion of Trip’s retirement account. We affirm the trial court’s award of trial attorney fees to Tamera, a matter also challenged on Trip’s cross-appeal.

I. Background Facts and Proceedings.

The appellee, Arthur (Trip) Witten, and the appellant, Tamera Witten, had been married for approximately seven and one-half years when Trip sought to have their marriage dissolved in April 2002. One of the contested issues at trial was control of the parties’ frozen embryos. During the parties’ marriage they had tried to become parents through the process of in vitro fertilization. Because Tamera was unable to conceive children naturally, they had eggs taken from Tamera artificially fertilized with Trip’s sperm. Tamera then underwent several unsuccessful embryo transfers in an attempt to become pregnant. At the time of trial seventeen fertilized eggs remained in storage at the University of Nebraska Medical Center (UNMC).1

Prior to commencing the process for in vitro fertilization, the parties signed informed consent documents prepared by the medical center. These documents included an “Embryo Storage Agreement,” which was signed by Tamera and Trip as well as by a representative of UNMC. It provided in part:

Release of Embryos. The Client Depositors [Trip and Tamera] understand and agree that containers of embryos stored pursuant to this agreement will be used for transfer, release or disposition only with the signed approval of both Client Depositors. UNMC will release the containers of embryos only to a licensed physician recipient of written authorization of the Client Depositors.

The agreement had one exception to the joint-approval requirement that governed the disposition of the embryos upon the death of one or both of the client depositors. Another provision of the contract provided for termination of UNMC’s responsibility to store the embryos upon several contingencies: (1) the client depositors’ written authorization to release the embryos or to destroy them; (2) the death of the client depositors; (3) the failure of the client depositors to pay the annual storage fee; or (4) the expiration of ten years from the date of the agreement.

At trial, Tamera asked that she be awarded “custody” of the embryos. She wanted to have the embryos implanted in her or a surrogate mother in an effort to bear a genetically linked child. She testified that upon a successful pregnancy she would afford Trip the opportunity to exercise parental rights or to have his rights terminated. She adamantly opposed any *773destruction of the embryos, and was also unwilling to donate the eggs to another couple.

Trip testified at the trial that while he did not want the embryos destroyed, he did not want Tamera to use them. He would not oppose donating the embryos for use by another couple. Trip asked the court to enter a permanent injunction prohibiting either party from transferring, releasing, or utilizing the embryos without the written consent of both parties.

The district court decided the dispute should be governed by the “embryo storage agreement” between the parties and UNMC, which required both parties’ consent to any use or disposition of the embryos. Enforcing this agreement, the trial court enjoined both parties “from transferring, releasing or in any other way using or disposing of the embryos ... without the written and signed approval and authorization” of the other party.

Tamera has appealed the trial court’s order, challenging only the court’s resolution of the parties’ dispute over the fertilized eggs. She claims the storage agreement is silent with respect to disposition or use of the embryos upon the parties’ dissolution because there is no provision specifically addressing that contingency. Therefore, she argues, the court should have applied the “best interests” test of Iowa Code chapter 598 (2001) and, pursuant to that analysis, awarded custody of the embryos to her. She makes the alternative argument that she is entitled to the fertilized eggs due to her fundamental right to bear children. Finally, Tamera claims it would violate the public policy of this state if Trip were allowed to back out of his agreement to have children. She claims such an agreement is evidenced by his participation in the in vitro fertilization procedure.

Trip has filed a cross-appeal. He claims the court erred in awarding Tamera a cash payment to equalize the property division rather than simply awarding her a share of his retirement account. He also contends the trial court abused its discretion in ordering Trip to pay $1000 toward Tamera’s attorney fees.

II. Scope of Review.

We review claimed error in dissolution-of-marriage decrees de novo. See In re Marriage of Knickerbocker, 601 N.W.2d 48, 50-51 (Iowa 1999). Although we decide the issues raised on appeal anew, we give weight to the trial court’s factual findings, especially with respect to the credibility of the witnesses. Id. at 51. An award of attorney fees is reviewed for an abuse of discretion. See In re Marriage of Benson, 545 N.W.2d 252, 258 (Iowa 1996).

III. Disposition of Embryos.

A. Scope of storage agreement. We first consider Tamera’s contention that the storage agreement does not address the situation at hand. As noted earlier, the agreement had a specific provision governing control of the embryos if one or both parties died, but did not explicitly deal with the possibility of divorce. Nonetheless, we think the present predicament falls within the general provision governing “release of embryos,” in which the parties agreed that the embryos would not be transferred, released, or discarded without “the signed approval” of both Tamera and Trip. This provision is certainly broad enough to encompass the decision-making protocol when the parties are unmarried as well as when they are married.

The only question, then, is whether such agreements are enforceable when one of the parties later changes his or her mind *774with respect to the proper disposition of the embryos. In reviewing the scarce case law from other jurisdictions on this point, we have found differing views of how the parties’ rights should be determined. There is, however, abundant literature that has scrutinized the approaches taken to date. Some writers have suggested refinements of the analytical framework employed by the courts thus far; some have proposed an entirely new model of analysis. From these various sources, we have identified three primary approaches to resolving disputes over the disposition of frozen embryos, which we have identified as (1) the contractual approach, (2) the contemporaneous mutual consent model, and (3) the balancing test.

Tamera’s argument that her right to bear children should override the parties’ prior agreement as well as Trip’s current opposition to her use of the embryos resembles the balancing test. As for Tamera’s alternative argument, we have found no authority supporting a “best interests” analysis in determining the disposition of frozen embryos. Nonetheless, we will first consider whether chapter 598 requires application of that analysis under the circumstances presented by this case. Then, we will discuss and consider the three approaches suggested by decisions from other jurisdictions and the literature on this subject.

B. “Best interests” test. Iowa Code section 598.41 sets forth various standards governing a court’s determination of the custody of the parties’ children in a dissolution case, including the requirement that any custody award reflect “the best interest of the child.” Tamera contends the embryos are children and their best interest demands placement with her. Trip argues the frozen embryos are not children and should not be considered as such for purposes of applying chapter 598 in dissolution actions.

In resolving this disagreement, we note initially that we are not called upon to determine the religious or philosophical status of the fertilized eggs. See generally Carl H. Coleman, Procreative Liberty and Contemporaneous Choice: An Inalienable Rights Approach to Frozen Embryo Disputes, 84 Minn. L.Rev. 55, 66-68 (1999) (noting three main views regarding the “moral status” of the human embryo) [hereinafter “Coleman”]. Rather, we are merely required to decide whether the embryos have the legal status of children under our dissolution-of-marriage statute.

Our first step is to consider the legislature’s definition of “child” as that term is used in chapter 598. The term “minor child” is defined in section 598.1(6) as “any person under legal age.” Iowa Code § 598.1(6) (emphasis added). Whether frozen embryos fall within this definition is an issue of first impression for this court.

While we have not considered the legal status of frozen embryos before, our court has had the opportunity to determine whether an unborn fetus is a “person” or a “child” in the context of other statutory provisions. See Dunn v. Rose Way, Inc., 333 N.W.2d 830, 833 (Iowa 1983); Weitl v. Moes, 311 N.W.2d 259, 273 (Iowa 1981), overruled on other grounds by Audubon-Exira Ready Mix, Inc. v. Ill. Cent. Gulf R.R., 335 N.W.2d 148, 152 (Iowa 1983); McKillip v. Zimmerman, 191 N.W.2d 706, 709 (Iowa 1971); cf. Craig v. IMT Ins. Co., 407 N.W.2d 584, 587-88 (Iowa 1987) (permitting recovery under uninsured motorist coverage by husband and wife for death of their viable, unborn fetus on basis that fetus was a “covered person” under policy). In the Weitl and McKillip cases, this court considered whether an unborn fetus, viable in Weitl and nonviable in McKillip, was a “person” within the mean*775ing of Iowa’s survival statute. See Weitl, 311 N.W.2d at 270 (interpreting Iowa Code section 611.20); McKillip, 191 N.W.2d at 708 (same). Noting in McKillip that we “expressed] no opinion as to the existence of the fetus as a person in either the philosophical or actual sense,” we held the word “person” as used in the statute meant “only those born alive.” McKillip, 191 N.W.2d at 709; accord Weitl, 311 N.W.2d at 271 (holding “[t]he ordinary meaning of the word ‘person’ is a human being who has ‘attained a recognized individual identity’ by being born alive” (citation omitted)).

We reached a seemingly inconsistent result in Dunn, in which we considered the scope of the phrase “death of a minor child” as used in then rule 8 (now Iowa Rule of Civil Procedure 1.206). 333 N.W.2d at 831. In that case, we were called upon to decide whether a parent could recover under the rule for damages resulting from the death of the plaintiffs unborn child in an automobile accident. Id. No statutory definition of the term “minor child” guided our analysis. We also found little assistance in linguistic arguments, observing whether the term “minor child” included the unborn depended on which dictionary was consulted. Id. at 833. Consequently, “set[ting] completely aside all the philosophical arguments about the status of the unborn,” we based our decision “on the rule’s purpose.” Id. Noting the purpose of the rule was to permit parents to recover “when they are deprived of the anticipated services, companionship, and society of a minor child,” we concluded a parent’s “deprivation [did] not necessarily relate to the child’s birth.” Id. We held, therefore, that the parent’s right of recovery should “not depend on the legal status of the child” and recovery under rule 8 was permissible even when the deceased “child” was an unborn fetus. Id.

The common denominator in all three of our cases that consider the legal status of a fetus is our focus on the purpose of the law at issue and the legislative intent reflected by that purpose. See Dunn, 333 N.W.2d at 833 (“In the final analysis the question must turn on the rule’s purpose.”); Weitl, 311 N.W.2d at 273 (stating, “our role is to construe the statute as we believe the legislature intended it”); McKillip, 191 N.W.2d at 708 (“The pointed question is — Was the fetus a ‘person,’ as that term was used by the legislature in enacting section 611.20.... ”). That is the approach we follow in deciding the issue in this case. Therefore, rather than relying on our prior cases involving different statutes, we center our attention on the legislative intent with respect to the statute at issue here.

With this focus in mind, we conclude the principles contained in section 598.41 do not govern the dispute before us. First, we note the purposes of the “best interest” standard set forth in that statute are to “assure the child the opportunity for the maximum continuing physical and emotional contact with both parents” and to “encourage parents to share the rights and responsibilities of raising the child.” Iowa Code § 598.41(l)(a). The principles developed under this statute are simply not suited to the resolution of disputes over the control of frozen embryos. Such disputes do not involve maximizing physical and emotional contact between both parents and the child; they involve the more fundamental decision of whether the parties will be parents at all. Moreover, it would be premature to consider which parent can most effectively raise the child when the “child” is still frozen in a storage facility.

The principles of section 598.41 do not fit because what is really at issue here is *776not the custody of children as that concept is generally viewed and analyzed in dissolution cases. Rather, the issue here is who will have decision-making authority with respect to the fertilized eggs. See generally Kass v. Kass, 91 N.Y.2d 554, 673 N.Y.S.2d 350, 696 N.E.2d 174, 179 (1998) (noting “the relevant inquiry” in disputes over control of frozen “pre-zygotes” is “who has dispositional authority over them”); Davis v. Davis, 842 S.W.2d 588, 597 (Tenn.1992) (holding, in dissolution-of-marriage action, that fertilized eggs were neither “persons” nor “property” for purposes of determining the parties’ “decision-making authority concerning disposition of the embryos” and implicitly rejecting “best interests” analysis used by trial court). Thus, the factors that are relevant in determining the custody of children in dissolution cases are simply not useful in determining how decisions will be made with respect to the disposition and use of a divorced , couple’s fertilized eggs. For these reasons, we conclude the legislature did not intend to include fertilized eggs or frozen embryos within the scope of section 598.41.

C. Enforcement of storage agreement. We now consider the appropriateness of the trial court’s decision to allow Tamera and Trip’s agreement with the medical center to control the current dispute between them. As we noted above, there are three methods of analysis that have been suggested to resolve disputes over frozen embryos. We will discuss them separately.

1. Contractual approach. The currently prevailing view — expressed in three states. — is that contracts entered into at the time of in vitro fertilization are enforceable so long as they do not violate public policy. See Kass, 673 N.Y.S.2d 350, 696 N.E.2d at 180 (stating agreements between donors “regarding disposition of pre-zygotes should generally be presumed valid and binding”); Davis, 842 S.W.2d at 597 (holding agreement regarding disposition of embryos “should be considered binding”); In re Litowitz, 146 Wash.2d 514, 48 P.3d 261, 271 (2002) (enforcing parties’ contract providing for disposition of preembryos after five years of storage).2 The New York Court of Appeals expressed the following rationale for this contractual approach:

[It is] particularly important that courts seek to honor the parties’ expressions of choice, made before disputes erupt, with the parties’ over-all direction always uppermost in the analysis. Knowing that advance agreements will be enforced underscores the seriousness and integrity of the consent process. Advance agree*777ments as to disposition would have little purpose if they were enforceable only in the event the parties continued to agree. To the extent possible, it should be the progenitors — not the State and not the courts — who by their prior directive make this deeply personal life choice.

Kass, 673 N.Y.S.2d 350, 696 N.E.2d at 180.

This approach has been criticized, however, because it “insufficiently protects the individual and societal interests at stake”:

First, decisions about the disposition of frozen embryos implicate rights central to individual identity. On matters of such fundamental personal importance, individuals are entitled to make decisions consistent with their contemporaneous wishes, values, and beliefs. Second, requiring couples to make binding decisions about the future use of their frozen embryos ignores the difficulty of predicting one’s future response to life-altering events such as parenthood. Third, conditioning the provision of infertility treatment on the execution of binding disposition agreements is coercive and calls into question the authenticity of the couple’s original choice. Finally, treating couples’ decisions about the future use of their frozen embryos as binding contracts undermines important values about families, reproduction, and the strength of genetic ties.

Coleman, 84 Minn. L.Rev. at 88-89. Another legal writer has echoed these concerns:

Binding a couple to a prior disposition agreement has its roots in contract law. The primary advantage of treating the disposition of preembryos as a contract dispute is that it binds individuals to previous obligations, even if their priorities or values change. This advantage, while maximizing the efficiency of commercial transactions, is ill-suited to govern the disposition of human tissue with the potential to develop into a child. The potential of the embryo requires that couples be allowed to make contemporaneous decisions about the fate of the embryo that reflect their current values.

Christina C. Lawrence, Note, Procreative Liberty and the Preembryo Problem: Developing a Medical and Legal Framework to Settle the Disposition of Frozen Embryos, 52 Case W. Res. L.Rev. 721, 729 (2002) [hereinafter “Lawrence Note”]; accord J.B. v. M.B., 170 N.J. 9, 783 A.2d 707, 718-19 (2001). In response to such concerns, one commentator has suggested an alternative model requiring contemporaneous mutual consent. We now examine that approach.

2. Contemporaneous mutual consent. The contractual approach and the contemporaneous mutual consent model share an underlying premise: “decisions about the disposition of frozen embryos belong to the couple that created the embryo, with each partner entitled to an equal say in how the embryos should be disposed.” Coleman, 84 Minn. L.Rev. at 81. Departing from this common starting point, the alternative framework asserts the important question is “at what time does the partners’ consent matter?” Id. at 91. Proponents of the mutual-consent approach suggest that, with respect to “decisions about intensely emotional matters, where people act more on the basis of feeling and instinct than rational deliberation,” it may “be impossible to make a knowing and intelligent decision to relinquish a right in advance of the time the right is to be exercised.” Id. at 98; see also Sara D. Petersen, Comment, Dealing With Cryopreserved Embryos Upon Divorce: A Contractual Approach Aimed at Preserving Party Expectations, 50 UCLA L.Rev. 1065, 1090 & n. 156 (2003) (stating “surveys of couples that have stored frozen embryos suggest that they may be prone to changing them minds *778while their embryos remain frozen” and citing a study that found “ ‘[o]f the 41 couples that had recorded both a pre-treatment and post-treatment decision about embryo disposition, only 12(29%) kept the same disposition choice’ ” (citation omitted)). One’s erroneous prediction of how she or he will feel about the matter at some point in the future can have grave repercussions. “Like decisions about marriage or relinquishing a child for adoption, decisions about the use of one’s reproductive capacity have lifelong consequences for a person’s identity and sense of self’:

When chosen voluntarily, becoming a parent can be an important act of self-definition. Compelled parenthood, by contrast, imposes an unwanted identity on the individual, forcing her to redefine herself, her place in the world, and the legacy she will leave after she dies. For some people, the mandatory destruction of an embryo can have equally profound consequences, particularly for those who believe that embryos are persons. If forced destruction is experienced as the loss of a child, it can lead to life-altering feelings of mourning, guilt, and regret.

Coleman, 84 Minn. L.Rev. at 96-97. To accommodate these concerns, advocates of the mutual-consent model propose “no embryo should be used by either partner, donated to another patient, used in research, or destroyed without the [contemporaneous] mutual consent of the couple that created the embryo.” Id. at 110. Under this alternate framework,

advance instructions would not be treated as binding contracts. If either partner has a change of mind about disposition decisions made in advance, that person’s current objection would take precedence over the prior consent. If one of the partners rescinds an advance disposition decision and the other does not, the mutual consent principle would not be satisfied and the previously agreed-upon disposition decision could not be carried out.

When the couple is unable to agree to any disposition decision, the most appropriate solution is to keep the embryos where they are — in frozen storage. Unlike the other possible disposition decisions — use by one partner, donation to another patient, donation to research, or destruction — keeping the embryos frozen is not final and irrevocable. By preserving the status quo, it makes it possible for the partners to reach an agreement at a later time.

Id. at 110-12; see also id. at 89 (suggesting “the embryo would remain in frozen storage until the parties reach a new agreement, the embryo is no longer viable, or storage facilities are no longer available”); accord Lawrence Note, 52 Case W. Res. L.Rev. at 742. Although this model precludes one party’s use of the embryos to have children over the objection of the other party, the outcome under the contractual approach and the balancing test would generally be the same. See A.Z. v. B.Z., 431 Mass. 150, 725 N.E.2d 1051, 1057-58 (2000) (“As a matter of public policy, ... forced procreation is not an area amenable to judicial enforcement.”); J.B., 783 A.2d at 717 (evaluating relative interests of parties in disposition of embryos, concluding husband should not be able to use embryos over wife’s objection); Davis, 842 S.W.2d at 604 (“Ordinarily, the party wishing to avoid procreation should prevail.”); Susan B. Apel, Disposition of Frozen Embryos: Are Contracts the Solution?, Vermont Bar Journal, March 2001, at 31 (“Some argue that the party seeking to avoid procreation should prevail, and indeed, this appears to be the one harmonizing rationale of the four reported cases.”) [hereinafter “Apel”].

*7793. Balancing test. The New Jersey-Supreme Court appears to have adopted an analysis regarding the disposition of frozen human embryos that incorporates the idea of contemporaneous decision-making, but not that of mutual consent. In J.B., the New Jersey court rejected the Kass and Davis contractual approach, noting public policy concerns in “[ejnforcement of a contract that would allow the implantation of preembryos at some future date in a case where one party has reconsidered his or her earlier acquiescence.” 783 A.2d at 718. The court stated:

We believe that the better rule, and the one we adopt, is to enforce agreements entered into at the time in vitro fertilization is begun, subject to the right of either party to change his or her mind about disposition up to the point of use or destruction of any stored preembryos.

Id. at 719 (emphasis added). The court based its decision on “[t]he public policy concerns that underlie limitations on contracts involving family relationships.” Id.; see also A.Z., 725 N.E.2d at 1057-58 (refusing, in light of the same public policy concerns, to enforce an agreement that allowed the wife, upon the parties’ separation, to use the couple’s preembryos for implantation).

The New Jersey court did not, however, adopt the requirement for mutual consent as a prerequisite for any use or disposition of the preembryos. Rather, that court stated that “if there is a disagreement between the parties as to disposition ..., the interests of both parties must be evaluated” by the court. J.B., 783 A.2d at 719. This balancing test was also the default analysis employed by the Tennessee Supreme Court in Davis where the parties had not executed a written agreement. See Davis, 842 S.W.2d at 604 (holding in the absence of a prior agreement concerning disposition, “the relative interests of the parties in using or not using the preembryos must be weighed” by the court).

The obvious problem with the balancing test model is its internal inconsistency. See generally Lawrence Note, 52 Case W. Res. L.Rev. at 738 (suggesting “[t]he premise of the balancing test ... is flawed”). Public policy concerns similar to those that prompt courts to refrain from enforcement of contracts addressing reproductive choice demand even more strongly that we not substitute the courts as decision makers in this highly emotional and personal area. Nonetheless, that is exactly what happens under the decisional framework based on the balancing test because the court must weigh the relative interests of the parties in deciding the disposition of embryos when the parties cannot agree. See J.B., 783 A.2d at 719.

D. Discussion. With these alternative approaches in mind, we turn to the present case. Trip asks that the contractual provision requiring mutual consent be enforced; Tamera claims this agreement is against the public policy of Iowa because it allows Trip to back out of his prior agreement to become a parent. We first consider whether there is any merit to Tamera’s public policy argument.

“While the term ‘public policy’ is not susceptible of exact definition,” Walker v. Am. Family Mut. Ins. Co., 340 N.W.2d 599, 601 (Iowa 1983), we think the following discussion captures the meaning of this phrase:

The term “public policy” is of indefinite and uncertain definition, and there is no absolute rule or test by which it can be always determined whether a contract contravenes the public policy of the state; but each case must be determined according to the terms of the instrument under consideration and the circumstances peculiar thereto. In general, *780however, it may be said that any contract which conflicts with the morals of the times or contravenes any established interest of society is contrary to public policy. We must look to the Constitution, statutes, and judicial decisions of the state, to determine its public policy and that which is not prohibited by statute, condemned by judicial decision, nor contrary to the public morals contravenes no principle of public policy.

Liggett v. Shriver, 181 Iowa 260, 265, 164 N.W. 611, 612-13 (1917); accord Wunschel Law Firm, P.C. v. Clabaugh, 291 N.W.2d 331, 335 (Iowa 1980). The identification of a public policy is only part of the equation, however. “To strike down a contract on public policy grounds, we must conclude that ‘the preservation of the general public welfare ... outweigh[s] the weighty societal interest in the freedom of contract.’ ” Grinnell Mut Reinsurance Co. v. Jungling, 654 N.W.2d 530, 540 (Iowa 2002)(ci-tation omitted). In consideration of the delicate balancing required in this arena, we exercise the power to invalidate a .contract on public policy grounds cautiously and only in cases free from doubt. DeVetter v. Principal Mut Life Ins. Co., 516 N.W.2d 792, 794 (Iowa 1994).

Tamera contends the contract at issue here violates public policy because it allows a person who has agreed to participate in an in vitro fertilization program to later change his mind about becoming a parent. While there is some question whether Trip’s participation constitutes an implied agreement to become a father, see Davis, 842 S.W.2d at 598 (rejecting argument that husband impliedly agreed to become a parent outside the confines of a marital relationship simply by undergoing in vitro fertilization procedures with his then wife), we accept Tamera’s assertion for purposes of the present discussion and proceed to consider whether there is any public policy against an agreement allowing a donor to abandon in vitro fertilization attempts when viable embryos remain. Tamera cites to no Iowa statute or prior case that articulates such a policy in the factual context we face here. While Iowa statutes clearly impose responsibilities on parents for the support and safekeeping of their children, such statutes, as we have already discussed in connection with chapter 598, do not contemplate the complex issues surrounding the disposition and use of frozen human embryos. The public policy evidenced by our law relates to the State’s concern for the physical, emotional, and psychological well being of children who have been born, not fertilized eggs that have not even resulted in a pregnancy-

Nor can we say that the “morals of the times” are such that a party participating in an in vitro fertilization process has the duty to use or facilitate the use of each fertilized egg for purposes of pregnancy. To the contrary, courts that have considered one party’s desire to use frozen embryos over the objection of the other progenitor have held that the objecting party’s fundamental right not to procreate outweighs the other party’s procreative rights, even in the face of a prior agreement allowing one party to use the embryos upon the parties’ divorce. See A.Z., 725 N.E.2d at 1057-58; J.B., 783 A.2d at 717-19. Thus, we find no public policy that requires the use of the frozen embryos over one party’s objection.

That brings us to the more complex issue: are prior agreements regarding the future disposition of embryos enforceable when one of the donors is no longer comfortable with his or her prior decision? We first note our agreement with other courts considering such matters that the partners who created the embryos *781have the primary, and equal, decision-making authority with respect to the use or disposition of their embryos. We think, however, that it would be against the public policy of this state to enforce a prior agreement between the parties in this highly personal area of reproductive choice when one of the parties has changed his or her mind concerning the disposition or use of the embryos.

Our statutes and case law evidence an understanding that decisions involving marital and family relationships are emotional and subject to change. For example, Iowa law imposes a seventy-two hour waiting period after the birth of a child before the biological parents can release parental rights. See Iowa Code § 600A.4(2)(gr). In addition, although this court has not abolished claims for breach of promise to marry,3 only recovery of monetary damages is permitted; the court will not force a party to actually consummate the marriage. See Herbert F. Goodrich, Iowa Decisions on Breach of Marriage Promise, 4 Iowa L. Bull. 166, 177 (1918). It has also long been recognized in this state that agreements for the purpose of bringing about a dissolution of marriage are contrary to public policy and therefore void. Barngrover v. Pettigrew, 128 Iowa 533, 535, 104 N.W. 904, 904 (1905) (holding where express object of contract was to bring about a dissolution of marriage and to put an end to the various duties and obligations resulting from the marital union, contract was against public policy and void).

This court has also expressed a general reluctance to become involved in intimate questions inherent in personal relationships. See Miller v. Miller, 78 Iowa 177, 179-80, 42 N.W. 641, 641 (1889). In Miller, we refused to enforce a contract between husband and wife that required, in part, each “to behave respectfully, and fairly treat the other.” Id. at 180, 42 N.W. at 641. We explained our refusal on the following grounds:

[J]udieial inquiry into matters of that character, between husband and wife, would be fraught with irreparable mischief, and forbidden by sound considerations of public policy.

It is the genius of our laws, as well as of our civilization, that matters pertaining so directly and exclusively to the home, and its value as such, and which are so generally susceptible of regulation and control by those influences which surround it, are not to become matters of public concern or inquiry.

Id. at 182, 42 N.W. at 642; accord Heacock v. Heacock, 108 Iowa 540, 542, 79 N.W. 353, 354 (1899) (“Husband and wife cannot contract with each other to secure the performance of their marital rights and duties.”). Certainly reproductive decisions are likewise not proper matters of judicial inquiry and enforcement.

We have considered and rejected the arguments of some commentators that embryo disposition agreements are analogous to antenuptial agreements and divorce stipulations, which courts generally enforce. See Apel, Vermont Bar Journal at 31. Whether embryos are viewed as having life or simply as having the potential for life, this characteristic or potential renders embryos fundamentally distinct from the chattels, real estate, and money that are the subjects of antenuptial agreements. Divorce stipulations are also distinguishable. While such agreements may address custody issues, they are contempo*782raneous with the implementation of the stipulation, an attribute noticeably lacking in disposition agreements.

In addition to decisional and statutory authority supporting a public policy against judicial enforcement of personal decisions concerning marriage, family, and reproduction, our statutes also anticipate the effect of a couple’s dissolution on their prior decisions. For example, Iowa Code section 633.271 provides that if a testator is divorced after making a will, “all provisions in the will in favor of the testator’s spouse” are automatically revoked. Similarly, Iowa Code section 633.3107 revokes all provisions in a revocable trust in favor of the settlor’s spouse upon divorce or dissolution of the marriage. Similar considerations make enforcement of contracts between partners involving such personal decisions as the use and disposition of their combined genetic material equally problematic. As noted by one commentator, embryos are originally created as “a mutual undertaking by [a] couple to have children together.” Coleman, 84 Minn. L.Rev. at 83. Agreements made in that context are not always consistent with the parties’ wishes once the mutual undertaking has ended.

We think judicial decisions and statutes in Iowa reflect respect for the right of individuals to make family and reproductive decisions based on their current views and values. They also reveal awareness that such decisions are highly emotional in nature and subject to a later change of heart. For this reason; we think judicial enforcement of an agreement between a couple regarding their future family and reproductive choices would be against the public policy of this state. -

Our decision should not be construed, however, to mean that disposition agreements between donors and fertility clinics have no validity at all. We recognize a disposition or storage agreement serves an important purpose in defining and governing the relationship between the couple and the medical facility, ensuring that all parties understand their respective rights and obligations. See A.Z., 725 N.E.2d at 1057 n. 22 (‘We also recognize that agreements among donors and IVF clinics are essential to clinic operations.”). In fact, it is this relationship, between the couple on the one side and the medical facility on the other, that dispositional contracts are intended to address. See generally Ellen A. Waldman, Disputing Over Embryos: Of Contracts and Consents, 32 Ariz. St. L.J. 897, 918 (2000) (noting “courts and most scholarly authorities would transform documents designed to record the transmission of medical information from clinic to couple, and the couple’s acceptance of medical treatment, into a binding agreement between the couple itself’). Within this context, the medical facility and the donors should be able to rely on the terms of the parties’ contract. See A.Z., 725 N.E.2d at 1057 n. 22 (noting court’s decision not to enforce agreement between partners is not an “impediment to the enforcement of such contracts by the clinics or by the donors against the clinics”); J.B., 783 A.2d at 719.

In view of these competing needs, we reject the.contractual approach and hold that agreements entered into at the time in vitro fertilization is commenced are enforceable and binding on the parties, “subject to the right of either party to change his or her mind about disposition up to the point of use or destruction of any stored embryo.” J.B., 783 A.2d at 719. This decisional model encourages prior agreements that can guide the actions of all parties, unless a later objection to any dispositional provision is asserted. It also recognizes that, absent a change of heart by one of the partners, an agreement gov*783erning disposition of embryos does not violate public policy. Only when one person makes known the agreement no longer reflects his or her current values or wishes is public policy implicated. Upon this occurrence, allowing either party to withdraw his or her agreement to a disposition that person no longer accepts acknowledges the public policy concerns inherent in enforcing prior decisions of a fundamentally personal nature. In fairness to the medical facility that is a party to the agreement, however, any change of intention must be communicated in writing to all parties in order to reopen the disposition issues covered by the agreement. Id.

That brings us, then, to the dilemma presented when one or both partners change their minds and the parties cannot reach a mutual decision on disposition. We have already explained the grave public policy concerns we have with the balancing test, which simply substitutes the court as decision maker. A better principle to apply, we think, is the requirement of contemporaneous mutual consent. Under that model, no transfer, release, disposition, or use of the embryos can occur without the signed authorization of both donors. If a stalemate results, the status quo would be maintained. The practical effect will be that the embryos are stored indefinitely unless both parties can agree to destroy the fertilized eggs. Thus, any expense associated with maintaining the status quo should logically be borne by the person opposing destruction. See Coleman, 84 Minn. L.Rev. at 112 (“The right to insist on the continued storage of the embryos should be dependent on a willingness to pay the associated costs.”).

Turning to the present case, we find a situation in which one party no longer concurs in the parties’ prior agreement with respect to the disposition of their frozen embryos, but the parties have been unable to reach a new agreement that is mutually satisfactory. Based on this fact, under the principles we have set forth today, we hold there can be no use or disposition of the Wittens’ embryos unless Trip and Tamera reach an agreement.4 Until then, the party or parties who oppose destruction shall be responsible for any storage fees. Therefore, we affirm the trial court’s ruling enjoining both parties from transferring, releasing, or utilizing the embryos without the other’s written consent.

IV. Division of Trip’s Retirement Account.

In its decree, the trial court divided the parties’ joint property and debts, awarding Trip’s retirement account entirely to him. In order to equalize the division of assets and liabilities, the court ordered Trip to make a cash payment to Tamera of $5276. In his cross-appeal, Trip asserts the court should have awarded Tamera a share of Trip’s retirement account to equalize the property division, rather than making him responsible for a cash payment to Tamera. He claims that the retirement account carries an income tax burden that now rests entirely on him, whereas none of the assets awarded to Tamera carries any tax consequence upon liquidation. See generally Iowa Code § 598.21(1)(j) (instructing the court to consider “[t]he tax consequences to each party” in dividing the property of the parties). Tamera responds that it would be inequitable to make her wait to retirement to obtain her share of this asset.

We initially observe that the parties expressly removed the matter of tax conse*784quences from the trial court’s consideration in their pretrial stipulation, which states: “The parties agree that no tax consequence issue needs to be addressed by the Court.” This issue was apparently removed from the court’s consideration because both parties contemplated that the retirement account would be divided between them after adjusting for the value of the account earned by Trip prior to the parties’ marriage. During trial both Trip and Tamera testified with respect to then-personal wishes as to the disposition of each asset, stating their preference for who should be awarded each particular item. As to the retirement account, they both testified they wanted it to be divided equitably between them. Despite Tamera’s protestations on appeal that she should not have to wait until retirement to obtain her share of this asset, she appeared quite willing to do so at the time of trial. We turn, then, to a consideration of the fairness of the court’s award of cash to Tamera in lieu of a share of Trip’s retirement account.

Although Tamera correctly points out the court did not order Trip to liquidate his retirement account, there are no other assets that Trip has at his disposal that would be sufficient, alone or in combination, to make the cash payment to Tamera required by the court’s decree. Consequently, as a practical matter the court’s property division will require Trip to liquidate some portion of his retirement account with the attendant penalties of early withdrawal. Cf. In re Marriage of Hayne, 334 N.W.2d 347, 353 (Iowa Ct.App.1983) (affirming valuation of retirement account without any depreciation for potential tax liability, noting court did not order liquidation of account and it was “evident that respondent had other assets available to meet the court’s orders without liquidating it”). Therefore, we think a fairer division of the parties’ assets would eliminate the cash payment and substitute a $5276 share of Trip’s retirement account to Tamera. Consequently, we remand this case for the preparation and execution of the required documents to accomplish this transfer.

V. Trial Attorney Fees.

The trial court ordered Trip to pay $1000 towards Tamera’s trial attorney fees because Trip’s income “is substantially larger than Tamera’s.” Trip contends this amount was excessive for two reasons. First, he points to his payment of temporary alimony of $250 per month and his prior payment of $600 towards Tamera’s attorney fees. He also claims a trial was necessary primarily due to Tamera’s position on alimony and disposition of the frozen embryos, issues on which Trip prevailed at trial. Trip does not dispute on appeal that he is more financially able to pay the attorney fees.

Our consideration of this issue is guided by the following principles:

Trial courts have considerable discretion in awarding attorney fees. Whether attorney fees should be awarded depends on the respective abilities of the parties to pay. In addition, the fees must be fair and reasonable.

In re Marriage of Guyer, 522 N.W.2d 818, 822 (Iowa 1994). Trip points to no case where this court has considered whether the party requesting trial attorney fees was successful at trial. Cf. id. (stating court considers “whether the party making the request [for attorney fees] was obligated to defend the trial court’s decision on appeal” in awarding appellate attorney fees (emphasis added)).

When we evaluate Trip’s challenge to the trial court’s award of attorney fees in light of the relevant factors, we find no abuse of discretion. Trip has more *785ability to pay the fees than does Tamera and there is no claim the fees are not fair and reasonable. Therefore, we affirm the trial court’s attorney fee award.

VI. Summary and Disposition.

We affirm the trial court’s decree in all respects except the equalization payment Trip was ordered to make to Tamera. We modify the decree to eliminate that award and substitute in its place a division of Trip’s retirement account allocating $5276 to Tamera and the balance to Trip. We remand this case for entry of an order consistent with this decision.

AFFIRMED ON APPEAL AND MODIFIED ON CROSS-APPEAL. CASE REMANDED.