Local Law Blogs

Marriage or Marriage-Type Relationships Are Required For Adoption

Despite the fact that the biological father had a history of mental health problems, substance abuse, and criminal involvement, a New Jersey Superior Court recently refused to consider the maternal grandfather’s application to adopt his granddaughter, and thus terminate the parental rights of the father.

Specifically, the biological father of the child in question was arrested twenty seven times, incarcerated on several occasions, and treated for substance abuse and mental health issues off and on for twenty eight years. When the child was five years old, she told the mother that her biological father had sexually molested her. The Division of Youth and Family Services (DYFS) conducted an investigation and concluded that the father probably sexually molested the child one time. Although the father was arrested and charged with sexual assault and endangering the welfare of the child, the State dismissed the indictment and DYFS closed its case. A year later, the parents were divorced, and the mother obtained a final restraining order against the father, which prohibited the father from contacting her or any members of her family, including the child.

Two years later, the child’s maternal grandfather applied to the Court to adopt the child to provide [the child] with emotional, financial and physical stability. In support of his application, the grandfather emphasized that the biological father had accumulated arrears of $11,516.08. The Mother consented to this adoption and filed an application to the Court requesting that the Court terminate the biological father’s parental rights. The application was accompanied by a certification describing the abuse that she and the child endured from the birth father. The biological father filed an opposition to the adoption complaint.

The Court granted the biological father’s application for summary judgment, holding that a grandfather should not be allowed to be co-parent with his daughter when the biological father survives. The Court elaborated that, absent a showing of abuse or neglect, a private party is not permitted to terminate a parent’s parental rights. The only other way to terminate the parental rights of a biological parent is for the parent to voluntarily surrender their rights or if the Court finds that the parent has not fulfilled their parental duties and that adoption in the child’s best interest.

The Court further provided that the legislature did not intend for persons outside of marriage or a partnership to adopt children together. Courts have allowed step-parents or a partner in a same sex relationship to adopt when it is in the best interest of the child. Here, the applicant was the biological mother’s father. While forty eight other states allow same sex adoption, no other state has allowed a grandparent to become a co-parent with their own child by adopting their grandchild. Thus, the Court declined to consider this application.

The New Jersey law does afford grandparents a right of visitation with their grandchildren over the biological parent’s objection, provided that the grandparent provides that the child is harmed by not visiting with them. New Jersey also allows grandparents to adopt their grandchildren over the biological parent’s objection when both parent’s parental rights have been terminated.

Full post as published by New Jersey Law Blog on October 02, 2008 (boomark / email).