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The critical importance of the sibling relationship has been recognized by social scientists, our courts, and Legislature. In N.J. Div. of Youth & Family Servs. v. S.S., the Court quoted mental health experts who believe “that the sibling relationship can be ‘longer lasting and more influential than any other, including those with parents, spouse, or children[,]‘ and that ‘[w]hen it is severed, the fallout can last a lifetime.’” 187 N.J. 556, 561 (2005) (quoting Nat’l Adoption Info. Clearinghouse, The Sibling Bond: Its Importance in Foster Care and Adoptive Placement 1 (1992), http://www. childwelfare.gov/pubs/f–siblin.pdf); see also Ellen Marrus, “Where Have You Been, Fran?” The Right of Siblings to Seek Court Access to Override Parental Denial of Visitation, 68 Tenn L. Rev. 977, 987 (1999)).

New Jersey law recognizes the value of nurturing and sustaining sibling relationships. The Child Placement Bill of Rights Act, N.J.S.A. 9:6B-1 to -6 (the Act), provides, in relevant part:

A child placed outside his home shall have the following rights, consistent with the health, safety and physical and psychological welfare of the child and as appropriate to the individual circumstances of the child’s physical or mental development:
. . . .
d. To the best efforts of the applicable department to place the child in the same setting with the child’s sibling if the sibling is also being placed outside his home;
. . . .
f. To visit with the child’s sibling on a regular basis and to otherwise maintain contact with the child’s sibling if the child was separated from his sibling upon placement outside his home, including the provision or arrangement for transportation as necessary[.]

[N.J.S.A. 9:6B-4.]

In implementing its responsibilities under the Act, DYFS promulgated administrative regulations “to ensure that each child” placed out-of-home has the opportunity to visit with siblings, so as to reinforce the child’s identity and maintain family relationships, among other things. N.J.A.C. 10:122D-1.1(a). Under N.J.A.C. 10:122D-1.4(a) and (d), a written visitation plan must be developed for every child in an out-ofhome placement which must include visits with siblings, either with parental visits or separately.

Further, the DYFS II Field Operations Casework Policy and Procedures Manual (DYFS Manual) directs that DYFS make “every effort” to place siblings together and to reunite them, as placing siblings together “is psychologically beneficial to the children and may help their adjustment.” Id. at § 1504 (March 25, 2002). When siblings cannot be placed together, a written visitation plan must be developed and include sibling visitation. Id. at § 1107.1 (December 27, 2004). The reason is that “[m]aintaining contact with brothers and sisters supports the child’s identity and links him to his past. However, many children in out-of-home placement are not able to be placed with their siblings. In many cases sibling contact helps to maintain an otherwise problematic placement.” Id. at § 911 (December 10, 1993). The DYFS manual further provides that resource parents have a “responsibility to encourage the child’s relationship with his siblings and other relatives” by initiating and supporting contact, whether through letters, visits, or telephone calls. ^[1] Ibid.

These requirements, both legal and administrative, have been imposed in the context of pre-adoption foster care only. In the post-adoption setting, however, countervailing considerations come into play, none more important than the natural and fundamental right of a legal parent to the care, custody, management and control of his or her child. Santosky v. Kramer, 455 U.S. 745, 753, 102 S. Ct. 1388, 1394-95, 71 L. Ed. 2d 599, 606 (1982); 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, 64 S. Ct. 438, 442, 88 L. Ed. 2d 645, 652 (1944); V.C. v. M.J.B., 163 N.J. 200, 218, cert. denied, 531 U.S. 926, 121 S. Ct. 302, 148 L. Ed. 2d 243 (2000); Watkins v. Nelson, 163 N.J. 235, 245 (2000).

In this regard, the interests at stake here are not the rights of the natural parents whose rights have already been terminated, but rather the rights of the adoptive parents, who step into the shoes of the natural parents. Once a child is adopted, “[t]he child becomes the child of the adoptive parents and part of their extended family.” In re the Adoption of Child by W.P. and M.P., 163 N.J. 158, 169 (2000). “[A]doption ends the parental role of the biological parents and transfers that role to the adoptive parents.” In re Adoption of A Child by D.M.H., 135 N.J. 473, 491, cert. denied, 513 U.S. 967, 115 S. Ct. 433, 130 L. Ed. 2d 345 (1994). It is the adoptive parents’ rights that may be infringed in the future, and therefore, it is their rights as parents that must be considered.

This right of parental autonomy is so basic that it may only be infringed by a court, in the exercise of its parens patriae authority to protect the child from serious physical or psychological harm, Moriarty v. Bradt, 177 N.J. 84, 113 (2003) (quoting Watkins, supra, 163 N.J. at 246-47), cert. denied, 540 U.S. 1177, 124 S. Ct. 1408, 158 L. Ed. 2d 78 (2004), and to make decisions in the best interests of the child, In re Grady, 85 N.J. 235, 259 (1981), in the face of clear and convincing evidence of parental unfitness, abandonment, gross neglect or “exceptional circumstances.” V.C., supra, 163 N.J. at 219; see also Sorentino v. Family & Children’s Soc’y of Elizabeth, 72 N.J. 127, 132 (1976).

The issue of forced relative visitation in non-relative adoptions was addressed in In re the Adoption of Child by W.P. and M.P., 163 N.J. 158 (2000) (W.P.). There, the issue was whether, pursuant to the Grandparent Visitation Statute, N.J.S.A. 9:2-7.1, grandparent visitation could be enforced over the objections of non-relative adoptive parents. Id. at 160. To resolve the issue, the Court examined whether the Grandparent Visitation Statute was at odds with the public policy of the New Jersey Adoption Act, N.J.S.A. 9:3-37 to -56 (Adoption Act). Ibid. Finding “an inherent conflict between the two statutes[,]” id. at 163, the Court concluded that the overriding public policy and statutory law regarding adoptions, which “emphasizes the complete termination of the biological parent’s rights, thus having the logical effect of terminating a biological grandparent’s right to visitation[,]” id. at 168, precluded “the application of the Grandparent Visitation Statute when the child is adopted by intact, non-relative adoptive parents.” Id. at 163.

The “ultimate purpose” of the Adoption Act was to “support the newly-created family and to encourage other families to adopt a child with the knowledge that biological relatives will not interfere with the new family unit.” Id. at 174.

The concerns voiced in W.P. over grandparent visitation after non-relative adoption apply as well to sibling visitation post-adoption. In W.P., supra, the Court relied heavily on the Legislature’s specific rejection of open adoption. 163 N.J. at 171-73. In fact, the Legislature has repeatedly rejected attempts to move New Jersey from a closed adoption system to an open system. In a 1993 proposed amendment, the language contemplated that “post-adoption contact could continue between a child and biological family only with the voluntary consent of the adopting parent.” Thus, the Legislature “never anticipated, even if the concept of open adoption had been enacted, [that visitation be compelled] against the wishes of the adoptive parents.” Id. at 172. At the time of the deletion of the proposed amendment, the Senate Judiciary Committee advised that “[w]hile it is not the intent of the committee in deleting this language to discourage open adoptions, it was felt that the issue of open adoption represents a significant policy issue which should be addressed in separate legislation.” D.M.H., supra, 135 N.J. at 494 (quoting Senate Judiciary Committee, Statement to Senate, No. 685 (1993)).

The Court has even refused to enforce arrangements that had initially been entered into with mutual consent that permitted continued contact between biological relatives and the adopted child, finding that such arrangements could not be “judicially enforced, given the potential for disruption of the child’s family life under such arrangements and the fact that under the adoption laws the adoptive parents’ rights are paramount.” K.H.O., supra, 161 N.J. at 362.

Another consideration in W.P. was the “overarching purpose of the Legislature” that the Adoption Act “facilitate and encourage adoptions.” 163 N.J. at 173. The Court noted the “well-established principle that administrative agencies are entitled to substantial deference in the area of their expertise[,]” and thus gave credence to DYFS’ concern that allowing biological grandparents to visit would “discourage — if not prevent — adoption.” Id. at 173-74. The Court placed “great reliance” on DYFS’ position that post-adoption visitation would have a “chilling effect” on prospective adoptive parents. Id. at 174.

These same concerns over loss of parental autonomy and disruption to the new adoptive family, as well as their consequent chilling effect on adoptions, are all equally implicated in sibling visitation post-adoption.

The sibling relationship is different in kind from the grandparent relationship. Yet the Legislature chose to treat them as equivalent in N.J.S.A. 9:2-7.1.

NOTE: My Law Office is located at 726 West Saint Georges [W. St. Georges] Avenue (Route 27), Linden, Union County, NJ. Telephone: 908-486-2200

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1. Federal law also mandates that in order to be eligible for federal payments, states must make reasonable efforts to place siblings removed from their home in the same foster care, kinship guardianship or adoptive placement and, if that is not possible, must provide for frequent visitation or other interaction between siblings. 42 U.S.C.A. § 671(a)(31)(A) and (B).

Adoption was not recognized at common law and it is a creation of a statute. N.J.S.A. 9:3-37. The New Jersey Adoption Act, which governs adoption is liberally construed so that the best interests of the children are promoted and due regard is given to the rights of all persons affected by an adoption. N.J.S.A. 9:3-37. More directly, N.J.S.A. 9:3-50(b), states that the court may, for good cause, “direct the entry of judgment of adoption nunc pro tunc as of the date the petition for adoption was instituted.” N.J.S.A. 9:3-50(b). The statute also gives the adoptive child the same rights of inheritance as a child born in lawful wedlock of the adopting parent. N.J.S.A. 9:3-50(b).

If the child sought to be adopted is of the age of ten years or over, the appearance of the child shall be required at the final adoption hearing, unless waived by the court for good cause shown, and the child’s wishes concerning the adoption shall be solicited by the court and given consideration if the child is of sufficient capacity to form an intelligent preference regarding the adoption. N.J.S.A. 9:3-49.

New Jersey recognizes the doctrine of equitable adoption as a theory of inheritance under intestacy. Burdick v. Grimshaw, 113 N.J. Eq. 591, 596,168 A.2d 186, 188 (N.J. Ch. 1933). Equitable adoption is a device which can be used to support a claim for benefits which would be available if a legally recognized parent-child relationship existed, such as claims for an intestate share, workers’ compensation benefits, social security benefits, and life insurance benefits.” In the Matter of the Adoption of Baby T., 311 N.J. Super. 408, 416, 709 A.2d 1381 (App. Div. 1998).

The Adoption Act has undergone major revisions in the past twenty years. The legislative history reveals that the revisions were intended “to simplify and clarify the provisions governing adoption proceedings” to promote adoptions. See statement to Senate Judiciary Committee, accompanying S. 1631, 197th Leg., 1st Sess. (N.J. 1976). In 1977, the Legislature included a broad statement that the Act should be liberally construed to promote the best interests of the adoptive children involved and that “due regard shall be given to the rights of all persons affected by an adoption.” L. 1977, c. 367 § 1 (repealed 1993 and recodified as amended at L. 1999, c. 53, §1). As such, when the court is considering an adoption the best interests and welfare of the child should be the paramount consideration of the court…” In re Adoption of G., 89 N.J. Super. 276, 281, 214 A.2d 549 (Cty. Ct. 1965).

N.J.S.A. 9:3-50(b) states that the court may, for good cause, direct the entry of a final judgment of adoption nunc pro tunc as of the date the petition for adoption was instituted. The statute permits the granting of an adoption going back to the date of filing. The date of filing is important because it will permit the court to grant the adoption even after the death of a prospective adoptive parent and may provide the child with the opportunity to enjoy certain benefits from the deceased parent. For example, the child may be eligible for social security survivor benefits, life insurance benefits, veteran’s benefits, immigration status, medical insurance and other benefits that arise from the death of a parent.

Before granting an adoption nunc pro tunc, after the death of an adopted parent, sufficient evidence must be presented to support a finding that: (1) there was an agreement to adopt, (2) the nature of the relationship was that of a parent-child, (3) the intent of the deceased parent was to adopt, and (4) granting the adoption is in the best interests of the child.

NOTE: My legal services include family law, divorce, child support, litigation, arbitration, mediation, child custody and visitation, alimony, equitable distribution, separation agreements, palimony, PSA, property settlement agreement, premarital and prenuptial agreements, midmarriage and marital agreements.

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The adoption statute does not “provide for post-adoption rights, including visitation, on the part of biological parents.” In re Adoption by D.M.H., 135 N.J. 473, 491 (1994). Rather, the statute provides that adoption terminates the parental rights of the adopted child’s biological parents:

The entry of a judgment of adoption shall terminate all parental rights and responsibilities of the parent towards the adoptive child. . . .

[N.J.S.A. 9:3-50c(1).]

Prior to its amendment in 1993, the statute had also specifically terminated “all rights, duties and obligations of any person that are founded upon such [parental] relationships.” N.J.S.A. 9:3-50(a)(repealed by L. 1993, c. 345, § 13).

However, in D.M.H, while affirming the denial of a biological mother’s application for visitation, the Court noted that in a few cases, the pre-amendment version of the statute had not been strictly applied where a child had been adopted by relatives, rather than by strangers. 135 N.J. at 491-92. See Kattermann v. DiPiazza, 151 N.J. Super. 209, 214 (App. Div. 1977)(biological mother’s unopposed appeal was remanded for a hearing on whether visitation would be in the fifteen-year-old child’s best interests).

Due to parents’ constitutional right to raise their children without interference, even the Grandparent Visitation Statute (GVS), N.J.S.A. 9:2-7.1, has been limited to situations in which the grandparents can prove that the child will suffer some demonstrable harm if visitation is denied. Moriarty v. Bradt, 177 N.J. 84, 117-18 (2003), cert. denied, 540 U.S. 1177, 124 S. Ct. 1408, 158 L. Ed. 2d 78 (2004).

Further, as is discussed at length in Daniels v. Daniels, 381 N.J. Super. 286 (App. Div. 2005), the process of litigation over visitation, in itself, interferes with parental rights:

When grandparents seek to interject themselves into parental decision-making by using the courts, that threat can take on constitutional dimensions. The process of discovery can impose expense, inconvenience and trauma. Absent special circumstances, parents who decide to limit or even preclude grandparent visitation should not be faced with court-ordered psychological examinations and other intrusive measures at the grandparents’ behest.

[Id. at 296-97.]

In V.C. v. M.J.B., 163 N.J. 200, cert. denied, M.J.B. v. V.C., 531 U.S. 926, 121 S. Ct. 302, 148 L. Ed. 2d 243 (2000), the Court defined the rights of third parties, such as the lesbian partner involved in that case, who have lived with the biological parent and children in a family relationship. In that context, the Court held:

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.

[Id. at 230.]

See related Blog Post, published in the New Jersey Family Law blog.

NOTE: My legal services include family law, divorce, child support, litigation, arbitration, mediation, child custody and visitation, alimony, equitable distribution, separation agreements, palimony, PSA, property settlement agreement, premarital and prenuptial agreements, midmarriage and marital agreements.

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Entry of a judgment of adoption triggers the strong public policy of this State to “promote the creation of a new family unit without fear of interference from the natural parents.” In re Adoption of Child by W.P., 163 N.J. 158, 169 (2000). The effect of adoption on the rights flowing from the child’s former relationship with his or her natural parents is so extensive as to preclude the enforcement of indirect natural rights. For example, in W.P., the Court held that a nonrelative adoption precludes the statutory rights of the child’s natural grandparents to visitation. Ibid.

NOTE: My legal and mediation services are offered to Polish-speaking and other clients in Fanwood 07023; Garwood 07027; Kenilworth 07033; Mountainside 07092; New Providence 07974; Roselle Park 07204; Roselle 07203; Elizabeth 07201; Linden 07036; Plainfield 07060; Rahway 07065; Summit 07901; Westfield 07090; Berkeley Heights 07922; Clark 07066; Cranford 07016; Hillside 07205; Scotch Plains 07076; Springfield 07081; Union 07083; Winfield; Carteret 07008; Dunellen 08812; East Brunswick 08816; Edison 08817; Jamesburg 08831; Metuchen 08840; New Brunswick 08901; Old Bridge 08857; Perth Amboy 08861; Sayreville 08871; South Amboy 08878; South River 08877; Avenel 07001; Colonia 07067; Iselin 08830; Woodbridge 07095; Somerset 08873; Somerville 08876 and Watchung 07069, New Jersey.

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U.S. Citizenship and Immigration Services — Adoption

NOTE: This Blog/Blawg, NJ Family Issues, is managed by Paul G. Kostro, Esq., an attorney/lawyer/mediator in Linden, Union County, New Jersey.

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Defendants D.R. and S.H. are a gay male couple who are legally married under California law and who registered their domestic partnership in New Jersey pursuant to the New Jersey Domestic Partnership Act, N.J.S.A 26:8A-l et seq.

D.R. is the brother of plaintiff A.G.R., a woman.

D.R. and S.H. decided to have children but wanted to have some genetic link to the child or children. After various options were considered involving A.G.R. it was decided and agreed that S.H. would provide the sperm which would be used to fertilize eggs donated by an unknown woman, with the fertilized embryos then being implanted into A.G.R. who would then carry the fetus to birth. Plaintiff A.G.R. gave birth to twin girls. There was be no genetic link between A.G.R. and the children in the strict sense of that term.

A legal analysis of the rights involved in this matter unquestionably begins with an understanding of In the Matter of Baby M, 109 N.J. 396 (1988). In that decision the New Jersey Supreme Court in a unanimous opinion held that surrogacy agreements made under the conditions that existed in that case (as well as any contracts that were “coerced” by the surrogacy agreement) were void as a matter of law.

Surrogacy agreements, at least those involving the payment of money were clearly against public policy in that they conflicted with criminal laws prohibiting the use of money in connection with adoption, Baby M, supra, 109 N.J. at 423. These agreements (which did not involve surrender to DYFS or an approved agency) were also in conflict with laws requiring proof of parental unfitness before termination could be granted, Baby M, supra, 109 N.J. at 428. These agreements were also contrary to laws that make surrender of custody and consent adoption revocable in private placement adoptions, Baby M, supra, 109 N.J. at 433, 434.

In moving for summary judgment the defendants claim that because A.G.R. has no genetic link to the children that the instant matter is distinguishable from Baby M.

The court held:

The lack of plaintiffs genetic link to the twins is, under the circumstances, a distinction without a difference significant enough to take the instant matter out of Baby M.

Finally, the court held that:

The plaintiffs motion for summary judgment is granted in as much as the court holds that plaintiff A.G.R. possesses parental rights under New Jersey law with respect to the twins L.H. and T.H. and that the gestational carrier agreement signed on February 28, 2006, is void and serves as no basis for termination of parental rights of the plaintiff and the consent to judgment of adoption is void and that the parental rights of plaintiff A.G.R. remain in effect and have not been terminated. The court also finds that defendant S .H. is the legal father of the twins L.H. and T.H., N.J.S.A. 9: l7-4Ib.

See also entry on Wikipedia.

NOTE: This Blog/Blawg, NJ Family Issues, is managed by Paul G. Kostro, Esq., an attorney/lawyer/mediator in Linden, Union County, New Jersey.

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Read: Federal Court: Jackson Boys Can Proceed With Damages Action Against New Jersey, published by Children’s Rights.

Read: REPRESENTING THE CHILD AS THE LAW GUARDIAN, published by Kidlaw.org

Be awere of: New Jersey Division of Youth & Family Services v. S.S.; In the Matter of the Guardianship of A.M.S., Minor Child (A-48-05), Decided July 18, 2006.

NOTE: My legal and mediation services are offered to Polish-speaking and other clients in Union, Middlesex, Somerset, Essex, Hudson, Bergen, and Morris counties in NJ.

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NOTE: My legal and mediation services are offered to Polish-speaking and other clients in Union, Middlesex, Somerset, Essex, Hudson, Bergen, and Morris counties in NJ.

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