New Jersey Adoption Attorneys
The process of adoption in New Jersey is governed by statute. The statute entitled the New Jersey Adoption Act, N.J.S.A. 9:3-37, has developed through the years to achieve the delicate balance between the best interest of the child and the rights of the biological and prospective adoptive parents. Whether an adoption is private or through an approved agency, a step-parent adoption or an adoption by same sex couple, the statutory guidelines apply to protect those interests.
The statute prohibits an approved adoption agency from discriminating “with regard to the selection of adoptive parents for any child on the basis of age, sex, race, natural origin, religion or marital status.” N.J.S.A. 9:3-37.
An approved agency is a non-profit corporation, association or agency, including any public agency, such as the Department of Children and Family Services (DCFS) and its Division of Youth and Family Services offices. Private agencies may be approved through the Commission of Human Services, as well. The New Jersey Commissioner of Human Services develops the rules and regulations governing the qualification of agencies that are approved to make placements for adoption.
The amendments to the Adoption Act passed in 2006 permit the use of intermediaries in non-agency settings to facilitate private adoptions. However, the statutory procedural requirements must still be fulfilled. Many of these procedural requirements are designed to protect all of the parties involved in the adoption process.
If a child is placed in a home through an approved agency, the prospective adoptive parent may file a formal Complaint for adoption after the child has been in the home for at least six months. A hearing date will be set by the court 10 to 30 days after the filing of the Complaint.
When the adoption is not through an approved agency, after the Complaint for adoption is filed, the Court awards the adoptive parent temporary custody and then the Court will appoint an approved agency. The approved agency then will submit to the Court proof of surrender of parental rights. After the Complaint is filed, the Court will schedule a plenary hearing to take place two to three months later, at which time the parental rights of the birth parent will be terminated during this plenary hearing and a date will be set for a final hearing six months or more later. An approved agency will be appointed by the Court to supervise the placement thereafter.
Ensuring a valid consent to the adoption is procured, while also protecting the critical rights of the biological parents, a document indicating consent to the adoption of the child must be signed by a representative of the approved agency and filed with the Complaint. Where there is a surrender to an approved agency, the surrender must be signed, acknowledged and be in written form. The approved agency must inform the surrendering parent that the surrender instrument is an irrevocable surrender of parental rights prior to the biological parent’s execution of the surrender. The agency must explain that the surrender will permanently sever the relationship and all contact with the child. Prior to the execution of the surrender, the approved agency must offer counseling to the biological parent. N.J.S.A. 9:3-41.
Moreover, one parent cannot surrender custody or termination of parental rights on behalf of both parents. N.J.S.A. 9:2-15.
The agency must file with the Court a report confirming the surrender of the child by the parents and an evaluation of the adoptive parents and child. This report must describe the facts and circumstances of the surrender, as well as set forth the results of the agency’s evaluation of the child and the prospective adoptive parents.
A step-parent may petition for adoption of a child where he/she has stood in loco parentis to the child, meaning having “stepped in the shoes” of the absent parent and provided the care and parenting of the child such that the child has become the psychological parent. In the Matter of Adoption of a Child by R.K., 303 NJ Super. 182 (App. Div. 1998).
In matters of step-parent adoption, the Court may, in its discretion, forgo the agency investigation and report requirement and instead take evidence at the preliminary hearing as to the facts and circumstances. N.J.S.A. 9:3-45.
It is permissible for the potential adoptive parents to pay for the birth’s mother’s expenses. The statute provides as follows:
It shall not be a violation […] (1) to pay, provide or reimburse to a parent of the child, or for a parent of a child to receive payment, provision or reimbursement for medical, hospital, counseling or other similar expenses incurred in connection with the birth or any illness of the child, or the reasonable living expenses of the mother of the child during her pregnancy including payments for reasonable food, clothing, medical expenses, shelter, and religious, psychological, vocational, or similar counseling services during the period of the pregnancy and for a period not to exceed four weeks after the termination of the pregnancy by birth or otherwise. These payments may be made directly to the birth mother or on the mother’s behalf to the supplier of the goods or services, or… N.J.S.A. 9:3-39.1
The approved agency must provide the prospective parent with all available information relevant to the development and medical history of the child prior to the finalization of the adoption. However, information that would lead to the identification of the birth parent must not be disclosed. In fact, all Court records of the adoption are sealed, including:
- The complaint and final judgment of adoption;
- Briefs; and
- All relevant documents.
These records are closed to the public and cannot be open to the public except by Order of the Court. N.J.S.A. 9:3-52.
The biological parent may object to an adoption only if he or she has not yet executed a valid surrender of his or her rights. If the biological parent has not surrendered his/her rights and wishes to object, he/she may do so by personal appearance in Court or by letter within 20 days of service of the Complaint or 35 days if out of state. N.J.S.A. 9:3-45.
Any objection made by the biological parent must be made within six months prior to the placement of the child for adoption, within 120 days after the birth of the child or prior to the date of the plenary hearing, whichever occurs first, where the child placed for adoption is a newborn infant. N.J.S.A. 9:3-46
The Court cannot permit the adoption to be finalized unless it can be shown that the biological parent has “substantially failed to perform the regular and expected parental functions of care and support of the child, although able to do so” (9:3-46(A)(1)) or is “unable to perform the regular and expected parental functions of care and support of the child and that the parent’s inability to perform those functions is unlikely to change in the immediate future.” N.J.S.A. 9:3-46(A)(2). The statute defines “regular and expected functions of care and support of the child” to include the following:
- The maintenance of the relationship with the child, such as the child perceives the person as his parent;
- Communicating with the child or person having legal custody of the child and parenting time rights, or unless prevented from so doing by the custodial parent or other custodian of the child or social service agencies over the birth parent’s objection; or
- Providing financial support for the child unless prevented from doing so by the custodial parent or other custodian of the child or a social service agency.
New Jersey has adopted measures to help ensure the safety of the adoptive child. In addition to the evaluation and report by an approved agency, the court will conduct a search of the records of the central registry established pursuant to the New Jersey criminal statutes to determine whether a prospective adoptive parent or any member of the parent’s household “(1) had a domestic violence restraining order entered against them; or (2) been charged with a violation of a Court Order involving domestic violence.” N.J.S.A. 9:3-47.
If the search results in any negative findings or the agency report contains findings or recommendations against the adoption by the prospective adoptive parent, the Court must appoint a Guardian ad litem for the child. A Guardian ad litem represents the best interests of the child, can conduct an investigation/evaluation and report its findings to the Court and testify.
Also, the law provides that a child’s voice must be heard. The Court must consider the child’s wishes if the child “is of sufficient capacity to inform intelligent preference regarding the adoption.” N.J.S.A. 9:3-49. In addition, the Court may order counseling for the new adopting parents. N.J.S.A. 9:3-50(d).
It is not necessary for the child to be present at the adoption unless ordered by the Court or the child is over 10 years old unless good cause is shown not to require appearance.
Once an adoption is finalized, it confers upon the adoptive parents all the rights and obligations of a biological parent, and the child has all the benefits of a biological child, which includes the right to inherit as if naturally born to the adoptive parents. N.J.S.A. 9:3-50. In fact, upon the entry of the judgment of adoption, the Court Clerk of the County in which the adoption was entered shall certify to the State Registrar in the State or County of the child’s birth, the date of the judgment, the names of the adoptive parent(s), the place and date of the child’s birth and the child’s new name, effectively amending the child’s birth records to reflect the adoption. N.J.S.A. 9:3-52.
Given the complexities of Adoption in New Jersey, we advise you to contact one of our experienced family law attorneys at 973-627-7300 at Einhorn Harris today. We handle adoption throughout New Jersey.