New Jersey Adoption FAQS

By: ​Deena L. Betze, Esquire

New Jersey is known nationally as an “adoption friendly” state. Families from all over the country come to New Jersey adoption agencies to place and adopt their children in this state. Why? New Jersey statutes, case law, and public policy all favor adoption and the best interests of the child, which is the standard by which New Jersey courts must base adoption decisions. New Jersey laws strive to promote finality of family arrangements for the child. The following are some frequently asked questions and answers about adoption based on New Jersey adoption law:

• Who can adopt a child?

In New Jersey, married couples are not the only ones who can adopt. Single adults, as well as same sex couples, may also adopt. There are no restrictions on who may adopt in New Jersey based upon gender, marital status, or sexual orientation. A married person cannot adopt a child alone unless the other spouse consents or is noticed and does not object.

• What is an “open” adoption and are those arrangements enforceable in New Jersey?

An open adoption is one in which there is some level of contact between the adoptive parents and the biological parents, both before and following the adoption The level of contact varies from case to case. A typical arrangement might involve the biological parents sending pictures and letters on regular intervals or, in some cases, even having visits with the child. Ultimately, the biological and adoptive parents reach an agreement on the nature, type, and frequency of contact with which they are comfortable. Currently, open adoptions are not recognized in this state. Therefore, while such arrangements are often made between adopting parents and birth parents, courts in New Jersey cannot enforce open adoption arrangements.

• What is a “surrender of parental rights?” Can a birth parent change her/his mind after signing one?

A surrender of parental rights is a signed consent to place a child for adoption and surrender of all parental rights by a biological parent. It can only be taken by an adoption agency, approved by the state, at least 72 hours after the birth of the child, or by a judge of the Superior Court of New Jersey. Once a valid agency surrender has been signed, it is irrevocable. There is no further waiting period during which the surrendering, biological parent can change her or his mind. A biological parent can only contest a surrender in court if he/she is able to prove that it was obtained by fraud, duress or misrepresentation on the part of the adoption agency in taking the surrender.

• Must a birth-mother who is placing a child for adoption name or identify the birth-father?

No. A birth-mother wishing to place a child for adoption in New Jersey is not required to name or identify the birth-father. If a birth-mother refuses to name the birth-father and he cannot be identified, the adoption will proceed without notice to him.

• What if the birth-father is identified?

If any identifying information has been provided about the birth-father, the agency (or the attorney for the adoptive parents, if it is a private placement) must attempt to undertake a diligent inquiry to notify him of the potential adoption. However, a birth-father who is noticed of a potential adoption is charged with the responsibility to assert his parental rights or he may lose his ability to participate in or contest the adoption. If he does not either file for a paternity determination or seek to amend the birth certificate to add his name as the father within 120 days of the date of birth of the child, he will not be entitled to notice of the adoption proceedings.

• Who can contest an adoption?

A biological parent who has not signed a valid agency surrender can contest an adoption, but a birth father will only receive notice of the adoption proceedings if, within 120 days of the date of birth of the child he has acknowledged paternity by amending the birth certificate to add his name or has made an application to the court to assert his parental rights. In certain circumstances, a guardian or relative of the child may file an objection to the adoption, if that person has provided primary care and supervision for the child for six months or half of the child’s life, whichever is less, during the last two years. Under current New Jersey law, a birth-parent who is contesting an adoption is entitled to legal counsel, potentially pro bono (free of charge), because of the significant, constitutional rights that are at stake in an adoption proceeding.

It is of the utmost importance to make sure any adoption agency you are working with is licensed, state approved and in good standing. If you are adopting internationally, you should know whether the agency you are working with is Hague accredited. Private placement (non-agency) adoptions are permitted in New Jersey as well, but different legal standards apply for their finalization. An attorney’s role in New Jersey really does not begin until after a child has been placed for adoption, at which time certain statutory requirements and timelines must be met before the adoption complaint can be filed. These requirements differ depending upon the type of adoption and the nature of the placement.

When choosing an adoption attorney, you should assure that your attorney is experienced in adoptions and fully familiar with the laws and requirements to make the finalization of your adoption as seamless and joyful as possible.

Social Media And Divorce

by:  Deena L. Betze, Esq.

With the recent media storm surrounding the hacking of cheating website, Ashley Madison, and the release of thousands of e-mail addresses and information on users of that site, our attention is once again focused on the internet and how social media affects divorcing couples. Like it or not, social networking has become a daily part of our society. It seems we cannot go anywhere without someone tagging us in a post, tweeting about it, or “checking us in” on FaceBook or Instagram.

I am old-school enough to still be shocked and somewhat appalled when someone tries to post my location while I’m out to dinner.

As attorneys, we have become painfully aware of the fact that once something is posted on a social network such as Facebook or Twitter, it cannot be permanently erased, even if deleted.

Communications between attorney and client are confidential and should not be shared.

Should a client reveal a confidential communication from their attorney on a social network, e-mail or other form of communication, that privilege would be lost.

It has become commonplace to post or tweet about every event, thought, feeling or mood change and it can be difficult to break those habits and walk away from the warm feeling of connectivity, even when failing to do so could be detrimental. Social media, in many cases, has replaced actual social interaction. Emotions run strong in divorce and family disputes. That is a time when people reach out to their social circle for support when they need it most. But doing so on line can have harmful results.

While it is tempting to vent about one’s feelings, or post snarky memes or sayings about the opposite sex or relationships, I caution my clients never to do so.

The same goes for posting pictures and updates about their new relationships.

This may sound like simple, common sense advice, but we are all probably guilty of sometimes posting updates without giving it a second thought. Not only are such posts permanently available for any crafty investigator or angry ex spouse/partner to dig up and use in court proceedings, but children, spouses/partners or others who may be hurt or misconstrue the posting can view them as well.

For years I have been warning my clients not to hit the “send” button on that late night text or e-mail to their former spouse or partner. Now I caution my clients to close down their FaceBook, Instagram and Twitter accounts during family court proceedings. Few actually follow this advice, and often it is just too tempting to post something related to their dispute or litigation that ultimately will be used against them.

Divorced or separated parties should be cautious never to post comments about their divorce, their spouse, a new partner, or any aspect of the proceedings on social networks, as those comments cannot be kept private and could ultimately be used against them in the litigation. Lawyers need to take the same advice and refrain from posting about specific cases, parties or adversaries on line, as that can be a serious breach of ethics. I recommend that parties simply not utilize social networks or even e-mail to share any details of their marital situation or divorce proceedings, especially those details that they would not want a judge, their ex, or their children, to see.

Children And New Partners- The Court Weighs In

by:  Deena L. Betze, Esquire

The issue of when or how divorced parents may introduce new, significant others to the children and what input the other parent may have in that decision is a thorny one. Until recently, the only decision on point was the 1976 case of DeVita v. DeVita, 145 N.J. Super. 120 (App. Div. 1976), which upheld a restriction banning a father from having his female companion spend the night during his parenting time. The phrase, “DeVita restriction” was coined to describe the ability for family courts to limit or restrict the amount of exposure or contact children can have with the significant other of their divorced parents that resulted.

In Mantle v. Mantle, 20-4-7530, the Hon. Lawrence Jones, J.S.C. of Ocean County Superior Court recently addressed this issue in the context of our more modern society. In Mantle, the court found that the DeVita decision does not specifically mean that exposure to a parent’s new dating partner is per se inappropriate or harmful to the child’s welfare, but rather, that such matters must be looked at on a case by case basis. Absent any evidence of inappropriate conduct by a dating partner toward the child, an indefinite “no-contact” provision would not be held enforceable. In that particular case, the court established a one-year transitional schedule for the gradual introduction of the significant other to the child.

In holding indefinite “DeVita restrictions” unenforceable without evidence of harmful conduct toward the child, Judge Jones pondered the social viability of such open-ended restrictions in today’s society. The court did not rule out short-term restrictions designed to protect the child, but rather, placed the focus on the best interests of the child in terms of gradually introducing them to a parent’s new partner. Judge Jones noted that in 1976, societal values were very different than they are in 2015 and it was a commonly held belief that exposure to such visits could harm the “moral welfare” of a child. But, such views are not necessarily shared by a majority of the community today. According to the court, “Sociologically speaking, 1976 was a million years ago. Given the overwhelming number of couples from all walks of life who presently live together full-time without the benefit of marriage, the landscape has changed drastically since the long gone days of the bicentennial.”

To balance the need to protect the emotional welfare of children and also realistically approach today’s societal norms, the court set forth factors to be considered when a “DeVita restraint” is sought, including how long the parties have been separated (living apart), the age of the child in question, how long the parent and new partner have been dating, whether that partner is already known to the child, and whether the child has an existing psychological or emotional issue that might require special consideration. In the event a dating partner presents a threat to a child through inappropriate actions, a blanket restriction against contact may still be appropriate. In any case, the focus should always remain on what is in the best interests of the child.

Restraining Orders and Mediation – Balancing the Equities

By:  Deena L. Betze, Esq.

We all know that mediation can be an effective and cost saving tool to resolve family law disputes. This is certainly true with regard to custody and parenting time issues. It is a well-used method for alternative dispute resolution often relied on by judges who otherwise would not be able to handle an already overcrowded docket. Without enough time or resources to try every litigated case, it is common practice for courts to order parties to mediate some or all of their issues both during and after divorce litigation. Similarly, parties who resolve their matters by way of settlement often include mediation clauses in their marital settlement agreements, whereby both parties agree to first submit a future dispute to mediation before either party resorts to motion practice before the court.

 

What then, to do when there is a final restraining order in place? Can mediation ever be utilized when a domestic violence restraining order has been entered against one of the parties?

 

This issue was recently addressed by the Appellate Division in O.P. v. L. G.-P., Docket No. A-0835-in which the lower court had ordered the parties to mediation in reliance upon an agreement to mediate their disputes set forth in their marital settlement agreement. Unfortunately, escalating disputes between the parties following their execution of that agreement and divorce resulted in the entry of a domestic violence restraining order against the plaintiff. The Appellate Court held that the lower court erred by enforcing the mediation provision in the agreement because of the entry of the final restraining order, finding that when a final restraining order entered pursuant to the Act For the Prevention of Domestic Violence is entered contains a no contact provision, a judge in a subsequent proceeding should not urge or encourage the victim to lift or modify that restraint. Thus, the Appellate Panel held that the court cannot order parties to mediation when a final restraining order is in place, for reasons of safety as well as public policy concerns, even where a mediation clause may be set forth in a settlement agreement.

 

There is no question that victims of domestic abuse must be protected and restraining orders previously entered be upheld, even if doing so contravenes the court’s similarly important role in upholding and enforcing marital settlement agreements that are fair and reasonable. However, this decision does not preclude parties from participating in mediation or other alternative dispute resolution techniques to resolve their disputes when a final restraining order exists, under circumstances in which the victim is protected. A restraining order can be amended to allow for a certain measure of communication on limited issues between the parties, for example, so that they can mediate a parenting issue. Certain protections can be put into place to assure the victim’s safety, such as conducting the mediation in “caucus” fashion, in which the parties are in separate rooms and the mediator speaks to them individually, one at a time. Counsel for the parties can be present and participate in the mediation to afford another level of protection to the victim. Accordingly, if the victim chooses to go to mediation, he or she is not precluded from creating a specific amendment to the restraining order to do so, and under the right circumstances, it can still be a very effective method of resolving issues, even where restraints exist.