Kenneth Vercammen is a Middlesex County trial attorney who has published 130 articles in national and New Jersey publications on Criminal Law and litigation topics. He was awarded the NJ State State Bar Municipal Court Practitioner of the Year. He lectures and handles criminal cases, Municipal Court, DWI, traffic and other litigation matters. He is Co Chair of the ABA Criminal Law Committee, GP and was a speaker at the ABA Annual Meeting. To schedule a confidential consultation, call us or New clients email us evenings and weekends go to www.njlaws.com/ContactKenV.htm

Kenneth Vercammen & Associates, P.C,

2053 Woodbridge Avenue,

Edison, NJ 08817,

(732) 572-0500,

www.njlaws.com

Monday, October 17, 2011

Private Adoption

Private Adoption

Private Adoption

The most common example is a step father adopting his wifes child from a prior relationship. In these cases, a Complaint must be filed in the Superior Court by the person (plaintiff) who wishes to adopt the child.

The New Jersey Court Rules and Adoption Statute has specific requirements for adoptions. The Complaint should set forth the following:

1. The name, age, address of adoptive father. Adoptive father is a citizen of the United States and not related to the child.

2. The childs name, place of birth, date of birth, and age.

3. Name and ages of any children of the proposed adoptive parent and the childs parent.

4. Where and when the plaintiffs began to take care of the child to be adopted from the natural mother.

5. The date from which the child has been under the continuous care of the plaintiff.

6. The name and address of the natural father and natural mother, if known to the plaintiffs. The natural parents were not married.

7. Whether the child to be adopted has any property.

8. The name by which the child to be adopted shall be known.

9. Place and type of employment and that both plaintiff and mother are able to support the child to be adopted.

10. Attach a typed affidavit of the consent of the natural mother.

11. Plaintiffs demand a judgment of adoption as to the child and that his name be changed.

In addition, the consent of the available natural father should be obtained. The affidavit to be prepared by the attorney which will contain some of the following information:

Consent of Mother/Father - To be signed in front of a Notary

1. The name and age of natural parent, declaration that he/she is the natural parent, city and county of childs birth.

2. Signed consent of natural parent to adoption of child by plaintiffs, relinquishment of all right and claim to child, and agreement that, from the date of the decree of adoption of child, that the child will, to all legal intents and purposes, be the child of the persons adopting the child.

3. (Optional) Consent of natural parent to child being raised in a particular religion.

Hearing Order An order fixing the day for hearing and publication must be prepared by your attorney. It must be submitted to the Court and signed by the Court. The Court Orders will set forth that:

1. The child sought to be adopted is to be a ward of the court;

2. Date and place of the hearing; 3. The Complaint for Adoption, together with the Order for hearing, and

Notice in the form required by N.J.S.A. 9:3-45, shall be published in The Home News and Tribune or another newspaper of general circulation.

4. Who should be served notice by personal service or certified mail.

Adoption Hearing

The adoptive father, natural mother and child should appear at the hearing. The Supreme Court Judge will conduct the questioning in the Judges Chambers. Your attorney will help you prepare.

Final Judgment of Adoption

A Final Judgment of Adoption by the court will set forth some of the following information:

1. That by virtue of the Complaint that Plaintiff desires to adopt the minor child, and a preliminary hearing having been held, and it further appearing that the best interest of the child would be promoted by such adoption, and it further appearing through notice by Publication of these proceedings set forth in The Home News & Tribune that the natural father of the child, has not contested the proceedings;

2. It is ordered and adjudged:

A. The above named child be adopted by the plaintiff. B. The name of the child shall be changed to _____. C. Upon entry of this Judgment of Adoption, the relationship heretofore existing between the child and the natural father of the child, be in all respects at an end;

D. The entry of this Judgment shall not affect or terminate any rights, duties, privileges, and relationships existing between the child and his natural mother, nor his right of inheritance from or through her, nor the rights of inheritance under the intestate laws of this State through the natural father.

E. The entry of this Judgment shall establish the same relationship between the child and the adopting parent as if such child were born to such adopting parent in lawful wedlock, including the rights of inheritance.

Post Adoption Hearing Procedures

Your attorney should fill out paperwork to obtain a new birth certificate. An adoption is a final proceeding. Even a divorce does not revoke an adoption. For additional information on adoption, contact a New Jersey attorney.

Selected statutes dealing with Adoption:

9:3-42. Jurisdiction in Chancery, venue 6. An action for adoption shall be instituted in the Superior Court, Chancery Division, Family Part of the county in which the prospective parent resides, or in the county where the child resided immediately prior to placement for adoption, or if the child is less than three months of age, the county in which the child was born; except that whenever the child to be adopted has been received into the home of a prospective parent from an approved agency, the action may be instituted in the Superior Court, Chancery Division, Family Part of any county in which the approved agency has an office.

L.1977,c.367,s.6; amended 1991,c.91,s.193; 1993,c.345,s.5.

9:3-43. Instituting adoption actions; qualifications 7. a. Any person may institute an action for adoption except that a married person may do so only with the written consent of his spouse or jointly with his spouse in the same action or if living separate and apart from his spouse.

b. A plaintiff, at the time of the institution of the action, shall have attained the age of 18 years and shall be at least 10 years older than the child to be adopted, except that the court for good cause may waive either requirement, which waiver shall be recited in any judgment of adoption thereafter entered.

L.1977,c.367,s.7; amended 1993,c.345,s.6.

9:3-44. Filing of complaint 8. Whenever a person receives a child into his home for the purpose of adoption other than from an approved agency, a complaint for adoption shall be filed within 45 days after receipt of the child. If the person receiving the child has been approved previously for placement for adoption in accordance with the provisions of section 18 of P.L.1993, c.345 (C.9:3-39.1), the person shall, immediately upon receiving the child, notify the approved agency which granted such approval of the receipt of the child, and that agency shall undertake immediate supervision of the child in accordance with rules and regulations promulgated by the Director of the Division of Youth and Family Services. The cost of such supervision shall be paid by the person receiving the child. If the agency, in the course of supervision shall determine that the child is at risk of harm or that the best interests of the child are not served by the child remaining in the home, the agency may apply to a court for removal of the child from the home. Whenever a person receives a child into his home for purposes other than adoption and it is later determined that an adoption shall be sought, a complaint for adoption shall be instituted with reasonable promptness following the determination. Failure to file the complaint in a timely manner shall not be a sole basis for refusal of the adoption but the failure shall require the filing, with the complaint, of an affidavit setting forth the reasons for the delay.

L.1977,c.367,s.8; amended 1993,c.345,s.7. 9:3-45 Notice of complaint to parents.

9. a. In an adoption proceeding pursuant to P.L.1977, c.367 (C.9:3-37 et seq.), notice of the complaint may not be waived and a notice of hearing shall be served in accordance with the Rules of Court on each parent of the child to be adopted. The notice shall inform each parent of the purpose of the action and of the parents right to file written objections to the adoption within 20 days after notice is given in the case of a resident and 35 days in the case of a nonresident. For purposes of this section, "parent" means (1) the husband of the mother of a child born or conceived during the marriage or (2) a putative or alleged biological mother or father of a child.

b.Notice pursuant to subsection a. of this section shall not be served on a parent:

(1)Who has executed a valid surrender to an approved agency pursuant to section 5 of P.L.1977, c.367 (C.9:3-41) or P.L.1955, c.232 (C.9:2-13 et seq.);

(2)Whose parental rights have been terminated in a separate judicial proceeding by court order;

(3)Who has, prior to the placement of the child for adoption, received notice of the intention to place the child, which notice shall inform the parent of the purpose of the placement, that failure to respond to the notice will prevent the person receiving the notice from objecting to any future adoption of the child, and that the parent has a right to file with the surrogate in the county in which venue is anticipated to lie, the address of which surrogate shall be included in the notice, written objections to the proposed placement within 20 days after notice is given, in the case of a resident, and 35 days in the case of a nonresident; and who has either failed to file written objections or denied paternity or maternity of the child. Failure to respond to this notice and object to the placement of the child for adoption shall constitute a waiver of all notice of any subsequent proceedings with regard to the child including proceedings for adoption or termination of parental rights;

(4)Who has given the child for adoption to the adopting parent, and the Superior Court, Chancery Division, Family Part, after a hearing at which the surrendering parent was heard as to the voluntariness of the surrender, has determined that the surrender was voluntary and proper;

(5)Whose child has been made available for adoption in a foreign state or country if the United States Immigration and Naturalization Service has determined that the child has been approved for adoptive placement. The finding of the United States Immigration and Naturalization Service shall be presumed valid and no notice shall be served ; or

(6)Who is presumed to be the biological father of the child who is the subject of the adoption proceeding pursuant to paragraph (2) of subsection a. of section 6 of P.L.1983, c.17 (C.9:17-43) but who, within 120 days of the birth of the child or prior to the date of the preliminary hearing, whichever occurs first, has not acknowledged paternity by amending the original birth certificate record filed with the local registrars office in the municipality of birth of the child who is the subject of the adoption proceeding in accordance with birth record amendment procedures, or has not filed an action for paternity in court.

c.If personal service of the notice cannot be effected because the whereabouts of a birth parent of the child to be adopted are unknown, the court shall determine that an adequate effort has been made to serve notice upon the parent if the plaintiff immediately prior to or during the placement and not more than nine months prior to the filing of a complaint has:

(1)Sent the notice by regular mail and by certified mail return receipt requested, to the parents last known address;

(2)Made a discreet inquiry as to the whereabouts of the missing parent among any known relations, friends and current or former employers of the parent;

(3)Unless otherwise restricted by law, made direct inquiries, using the partys name and last known or suspected address, to the local post office, the Division of Motor Vehicles, county welfare agency, the municipal police department, the Division of State Police, the county probation office, the Department of Corrections, and any social service and law enforcement agencies known to have had contact with the party, or the equivalents in other states, territories or countries. Failure to receive a response to the inquiries within 45 days shall be a negative response.

d.In any case where, within 120 days of the birth of the child or prior to the date of the preliminary hearing, whichever occurs first, the identity of a birth parent cannot be determined or where the known parent of a child is unable or refuses to identify the other parent, and the court is unable from other information before the court to identify the other parent, service on that parent shall be waived by the court.

e.In conducting the hearing required by paragraph (4) of subsection b. of this section, the court shall determine that the surrender is voluntary and that the birth parent knows (1) that the hearing is to surrender birth rights; (2) that the hearing is to permanently end the relationship and all contact between parent and child; (3) that such action is a relinquishment and termination of parental rights and consent on the part of the birth parent to the adoption; and (4) that no further notice of the adoption proceedings shall be provided to the birth parent if the surrender is accepted by the court.

L.1977,c.367,s.9; amended 1982, c.105, s.1; 1993, c.345, s.8; 1998, c.20, s.1.

9:3-45.1 Rules, regulations.

6.The Department of Human Services, in consultation with the Department of Health and Senior Services, pursuant to the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.), shall adopt rules and regulations to implement the provisions of this act and to publicize throughout the State the necessity for a father, within 120 days of the birth of a child or prior to the date of the preliminary hearing, whichever occurs first, to acknowledge paternity by amending the original birth certificate record with the local registrars office in the municipality of birth of the child who is the subject of the adoption or by filing a paternity action in court in order to be entitled to notice of an adoption pursuant to section 9 of P.L.1977, c.367 (C.9:3-45).

L.1998, c.20, s.6.

9:3-45.2 Foster parent notice, opportunity to be heard.

3.In any case in which the Division of Youth and Family Services accepts a child in its care or custody, the childs foster parent, preadoptive parent or relative providing care for the child, as applicable, shall receive written notice of and an opportunity to be heard at any review or hearing held with respect to the child, but the foster parent, preadoptive parent or relative shall not be made a party to the review or hearing solely on the basis of the notice and opportunity to be heard.

L.1999,c.53,s.3. 9:3-46 Objection to adoption.

10. a. A person who is entitled to notice pursuant to section 9 of P.L.1977, c.367 (C.9:3-45) shall have the right to object to the adoption of his child within 20 days after the filing of the complaint for adoption for a State resident and 35 days after the filing in the case of a nonresident. Failure to object within that time period constitutes a waiver of the right to object.

In a contest between a person who is entitled to notice pursuant to section 9 of P.L.1977, c.367 (C.9:3-45) objecting to the adoption and the prospective adoptive parent, the standard shall be the best interest of the child. The best interest of a child requires that a parent affirmatively assume the duties encompassed by the role of being a parent. In determining whether a parent has affirmatively assumed the duties of a parent, the court shall consider, but is not limited to consideration of, the fulfillment of financial obligations for the birth and care of the child, demonstration of continued interest in the child, demonstration of a genuine effort to maintain communication with the child, and demonstration of the establishment and maintenance of a place of importance in the childs life.

A judgment of adoption shall be entered over an objection of a person who is entitled to notice pursuant to section 9 of P.L.1977, c.367 (C.9:3-45) communicated to the court by personal appearance or by letter if the court finds, during the six-month period prior to the placement of the child for adoption or within 120 days after the birth of a child or prior to the date of the preliminary hearing, whichever occurs first, in the case of a child placed for adoption as a newborn infant:

(1)that the parent has substantially failed to perform the regular and expected parental functions of care and support of the child, although able to do so, or

(2)that the parent is unable to perform the regular and expected parental functions of care and support of the child and that the parents inability to perform those functions is unlikely to change in the immediate future.

The regular and expected functions of care and support of a child shall include the following:

(a)the maintenance of a relationship with the child such that the child perceives the person as his parent;

(b)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 a social service agency over the birth parents objection; or

(c)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.

A parent shall be presumed to have failed to perform the regular and expected parental functions of care and support of the child if the court finds that the situation set forth in paragraph (1) or (2) has occurred during the six-month period prior to the placement of the child for adoption, or within 120 days after the birth of a child or prior to the date of the preliminary hearing, whichever occurs first, in the case of a child placed for adoption as a newborn infant.

In the case where the objecting parent is incarcerated during the six-month period prior to placement of the child for adoption, relevant factors to be considered in determining whether that incarcerated parent has failed to perform the regular and expected parental functions or is unable to perform the regular and expected parental functions pursuant to this subsection, shall include the extent of the relationship which existed between the parent and child prior to incarceration, including financial support; the efforts made to continue a relationship during the incarceration; the ability to communicate and visit with the child during incarceration; and the effect of the communication and visitation on the childs development in terms of providing nurturing and emotional support.

b.The guardian of a child to be adopted who has not executed a surrender pursuant to section 5 of P.L.1977, c.367 (C.9:3-41) and any other person who has provided primary care and supervision in his home for the child for a period of six months or one half of the life of the child, whichever is less, in the two years prior to the complaint shall be given notice of the action and in accordance with the Rules of Court shall have standing to object to the adoption, which objection shall be given due consideration by the court in determining whether the best interests of the child would be promoted by the adoption.

L.1977,c.367,s.10; amended 1993, c.345, s.9; 1997, c.299, s.10; 1998, c.20, s.2.