Adoption and Foster Care

Garden State Equality extends its appreciation to attorney Debra Guston for writing this page. Ms. Guston, an authority on New Jersey LGBT family law and a partner at Guston & Guston in Glen Rock, New Jersey, is reachable at deguston@gustonandguston.com. This article is an overview and does not constitute legal advice.

New Jersey is one of the most gay and lesbian friendly states for adoption in the country. If you are considering adopting or already have a child or children and want to secure your spouse/partner’s legal rights to the child(ren), here’s what you need to know.

STATE AGENCY ADOPTIONS

The Division of Youth and Family Services (DYFS) has jurisdiction over abandoned and abused children in New Jersey. The agency runs a huge foster parent and placement program. By law, DYFS cannot discriminate on the basis of sexual orientation or any other classification for which the Law Against Discrimination prohibits discrimination.

Generally, to adopt through DYFS, you must be either approved as a foster parent or have asked DYFS to conduct a home study for you. DYFS will approve a gay or lesbian couple jointly as foster parents that would then allow you to jointly adopt a child if the child becomes available for adoption. DYFS also pays for your legal fees if you do adopt and you may choose an attorney of your choice and not accept their reference. The attorney must agree to accept DYFS’s standard fee). Choosing your own attorney is recommended because many other issues come into play with gay and lesbian parents – you need someone familiar with those issues.

Remember that DYFS’s first responsibility is to attempt reunification with the parent(s) of the child and there is a preference for blood relatives in placement and adoption, if possible, so this route of seeking adoption can have many disappointments and is a greater intrusion into your lives as DYFS monitors the child’s progress in your care. If you are interested in DYFS’ programs, you can call them at 877-NJ-FOSTER.

PRIVATE AGENCY ADOPTIONS

There are many private agencies in New Jersey licensed by the State to make adoption placements. Many are gay and lesbian friendly and will work hard to assist you in finding a child to adopt. Remember to ask a few questions when interviewing agencies to see if they are right for you:

  • How many placements have they made to gay and lesbian families?
  • Do they ask their birth mothers for their preferences or feelings about adopting to a gay or lesbian couple?
  • What is their agreement with birth mothers about contact after an adoption – will you be asked to provide information and photos?
  • What is their policy of permitting the child and/or birth parents information about each other after the adoption?
  • What are the average “waiting” times for the child you are interested in?
Make sure the agency’s policies and experience make you comfortable with working with them. This will be a long relationship – perhaps a year to two years, so you need to make a confident choice. Ask for references and seek references from others who have gone through the experience. Again, using an attorney familiar with gay and lesbian agency adoptions is recommended.

The home study in an agency adoption is a significant endeavor, requiring significant paperwork and several pre-placement and post-placement visits. Be ready to make a social worker from the agency a part of your lives for a significant period of time.

FOSTER PARENTING

Through DYFS, you may choose to become a foster parent. This can be a short term assistance to a child or infant until a parent completes a course of rehabilitation or long-term until a child becomes available for adoption. Many of these children have health and/or emotional issues and it takes a special foster family to care for them. DYFS does provide subsidies to help with health care and counseling and even if a child is adopted, if he/she has health issues, subsidies may continue. This can make adopting affordable for couples or singles with lower income or limited assets.

Also, when a case comes before the court if DYFS is seeking to terminate the parental rights to make way for an adoption, you would not have the right to participate in that hearing unless called as a witness by either the Deputy Attorney General representing DYFS or the attorney appointed to represent the child. You cannot speak on your own behalf as a person or couple wishing to adopt the child. A home study and criminal background check is required for all foster parent applicants, as well as ongoing contact with the child’s DYFS case worker. DYFS may mandate counseling for a child and may also permit the child to see his or her parent(s) on a supervised basis, so this will add to the ordinary parent “carpool” obligations.

Being a foster parent does not guaranty you will be able to adopt a child you care for, so you must be prepared for feelings of loss if the child is reunited with parents or relatives.

FOREIGN ADOPTIONS

Many foreign countries have long-standing and good relationships with the United States in respect to adopting their orphan or abandoned children to American parents. There are, however, significant issues with their regulations and customs concerning adoptions to “single” and gay and lesbian applicants. You will need to work with a U.S. adoption agency familiar with these issues to navigate the difficulties. You should also consult with an attorney familiar with these issues before engaging an agency, as your relationship status here in the U.S. (i.e., civil union, registered domestic partner, etc.) may come to be an issue in the application process.

In general, only one of you will be able to adopt a child from another nation. You may also find restrictions or suggested restrictions on traveling together to the foreign country to complete the adoption – this may have to be a process one of you completes alone. You will then have to proceed to a “second parent” adoption to complete the legal ties of the child to the non-adopting parent. Evaluate the impact on your relationship if this is the route you choose to take to build a family.

New Jersey law immediately recognizes the adoption of a child in New Jersey if you have obtained a judgment of adoption from a foreign court. Sometimes a child comes into the United States without being formally adopted in his/her home country. In that case, you will absolutely need to re-adopt the child here in New Jersey. There are a significant amount of technical requirements for a re-adoption, so consult an attorney familiar with foreign and re-adoption issues.

It is highly recommended that New Jersey gay and lesbian parents adopting from overseas do a re-adopt to cement their rights as a legal parent to the child by New Jersey judgment. Not all states immediately recognize such children as being legally adopted and you must protect yours and your child’s rights if you move out of New Jersey. Further, New Jersey will issue a NJ Birth Certificate to the child if you re-adopt. The only other way to obtain a NJ Birth Certificate is to administratively submit all your original documents from the foreign government and US Immigration to the Division of Vital Statistics and they will provide a certificate. This is time consuming and requires you to temporarily relinquish your original documents.

A child coming into the United States will come in on one of two types of Visas. One makes the child automatically a United States citizen and one confers permanent residency status. Check with your adoption agency to review those issues and apply for a naturalization certificate for the child regardless of the immigration status – your child’s NJ birth certificate will state the country of birth and so to protect the child against any questions of legal status in the future – get the naturalization certificate.

PRIVATE PLACEMENT ADOPTIONS AND THE INTERSTATE COMPACT

Some people choose to adopt a child through a direct contact with a birth mother. This can happen through family, friends or advertising contacts. New Jersey prohibits paying an intermediary, or facilitator, to assist you in locating a private adoptive source, so speak with an attorney before you enter into ANY type of fee paying arrangement with someone other than a licensed NJ adoption agency. New Jersey DOES permit you to assist a birth mother with specific expenses during her pregnancy, such as pre-natal and general medical care and certain roof expenses, but again, careful review of the law with an attorney is suggested before any payments are made.

Care should be given in these circumstances, as many birth mothers change their minds about placements and they cannot legally give their consent for 72 hours after the birth of a child in New Jersey. Other states have other processes and waiting time for the consent to be given.

When the child to be adopted is born in another state. In this circumstance, there is an Inter-State Compact that deals with the sending of children across state lines for adoption. State agencies in the “sending” state and the “receiving” state must approve the transfer of the child. This requires the birth parent to apply in the state of the child’s birth and you to apply here in New Jersey. The regulations can be tough to navigate, counsel for both parties is usually required, although some states have free counsel or social workers available to birth mothers to assist with their applications. You should also know that the child cannot travel to New Jersey until the process is complete. This can take up to two to three weeks after the birth, so you must be prepared to stay in the birth state with a child until the approval is complete.

Home studies are required for all private placement adoptions and birth parents may wish to see a home study when making their decision to place their child with you.

Another issue with private placements that may be complicated and delay the finalization of an adoption is gaining the consent of the birth father or serving him with notice. Again, these requirements are different in different states and you will need to have counsel to assist you with making decisions about whether to proceed with a private placement adoption given the complexity of each matter.

SECOND PARENT ADOPTIONS

New Jersey has been in the forefront of recognizing the legal rights of non-biological or non-adoptive lesbian and gay parents. Since the late 1980’s, “second parent” adoptions have been approved and we have an Appellate Division (our mid-level court) opinion that definitively states that these adoptions are permitted under the laws of the State. The process of these adoptions can vary county to county, so again, as with all adoptions, experienced legal counsel can be invaluable in navigating a sometimes confusing system.

All second parent adoptions require the adopting parent and any other adults living in the household (other than the legal parent) to undergo a criminal and domestic violence background check. This requires submission of fingerprints and personal information to a licensed adoption agency for processing. If you have any issues in your past, you should discuss those issues with your attorney before speaking to the adoption agency, so proper documents such as proofs of the payment of fines and completion of probationary sentences may be obtained. Also, you may wish to consider seeking an expungement or sealing of the records prior to proceeding to an adoption. Rarely do past problems prevent an adoption, but histories of domestic violence, child abuse or endangerment, assaults or drug/alcohol issues will become points of concern.

In most New Jersey counties, a home study is required for a second parent adoption. This requirement is gradually being relaxed as Civil Union couples present themselves to the Court seeking Second Parent Adoptions, but many counties require home studies in all step parent and second parent adoptions. This is an investigation conducted by a licensed adoption agency and is ordered by the court. Generally, these investigations consist of a submission by the proposed adoptive parent and his/her spouse/partner of biographical (familial and medical) information; economic (asset, debt and income) information and references from people who know you as parents.

You will also be asked for a statement from your medical doctor that you are healthy enough to parent. Do not worry about issues such as HIV/AIDS, heart conditions or cancer history – what the agency is looking for is whether you can provide the child with a stable household and support.

If you have concerns about health history, speak with your attorney. The home studies also require a visit to your home to meet with you and your family. The social worker needs to get to know you a bit before he/she can write a report to the Court. Most counties require the home study because the Judge in your matter is charged by law to make a ruling based on “the best interests of the child.” The Judge can only make this decision if there is:

  1. a hearing in which extensive testimony is given, or
  2. if a court-appointed expert, i.e., the adoption agency, issues an opinion and makes the recommendation for the adoption. While an extra cost to you, the home study is actually the most economical means of providing the Court with the information it needs.
Once a hearing occurs, a second parent adoption is finalized with the issuance of a Final Judgment for Adoption. This is a critical document. Make sure you safeguard it, as it is proof of the New Jersey Court’s approval of the adoption. After your hearing, your Court file will be sealed and even you will need a Court Order to re-open the file if you need to replace a lost Judgment. If your child was born in New Jersey, a new birth certificate will be issued to you and your spouse/partner listing you both as “parents” of the child. This can take a few months to work its way through the system.

If the child was not born in New Jersey, most states will issue a new birth certificate to you. Several states have prohibitions against issuing birth certificates to two people of the same gender – you can probably guess which ones those are. If the birth state rejects the request for the amendment of the birth certificate, then New Jersey will issue a Certification of Birth upon proof that the birth state rejected the request and proof of your New Jersey residency. You may need an attorney to assist you with this process to satisfy the New Jersey authorities that they need to issue the Certification.

SURROGACY

Men wishing to have a biological child may choose the route of engaging a surrogate mother to bear his child. It is very important to know that New Jersey, by law, will NOT enforce a surrogacy contract. Therefore, if a child is born to a surrogate in New Jersey and the birth mother decides she does not want to relinquish the child, the Court will not enforce any agreement for a relinquishment. The biological father will then be in a custody and parenting time fight with the surrogate mother.

There are several states in which surrogacy has become common and is enforceable. California and Indiana are among the two most popular states for this procedure. Depending on the state, you may be able to proceed to a second parent adoption immediately (such may be the case in California), but expect that the biological dad will be on the birth certificate and you will then proceed to a second parent adoption when the child comes home to New Jersey.

The same cautions and process is in place for women who for some reason cannot conceive or cannot carry a child and choose to have a child by surrogacy. Here, however, the surrogate will be on the birth certificate initially issued and the woman to become the mother will have to adopt the child, even if it may have been the adopting mother’s ova that were used in the conception.

Surrogacy contracts, enforcement and process can be complicated by state regulations and law and you should seek counsel before entering into any contract.

CIVIL UNION AND DOMESTIC PARTNERSHIP – IMPACT ON ADOPTION ISSUES

Lesbian birth mothers in New Jersey can apply to have their partner’s name placed on the birth certificate of a child born to her while she is in a registered domestic partnership or civil union. This is possible only if the child is born in New Jersey and if the couple registered as New Jersey domestic partners prior to February 19, 2007, or as New Jersey civil union partners after that date, or is in a registered relationship from another state recognized under the civil unin law.

Check with your attorney before meeting with the hospital’s intake/registry clerk. REMEMBER: the issuance of a birth certificate to two moms DOES NOT take the place of a Judgment for Adoption. You must proceed to an adoption if you want the legal rights of the non-biological mom to be safe outside the State of New Jersey. Even within New Jersey, should the Civil Union laws ever be repealed by the Legislature or invalidated by Constitutional Amendment, then the birth record alone may not serve to solidify the non-biological parent’s rights to parent the child.

New Jersey law requires that spouses jointly adopt or if only one party wishes to adopt, that the non-adopting spouse give his/her written consent. Even though the law allows a spouse to “opt out” of adopting by written consent, this does not mean the Court will still approve the adoption, because it might not believe the adoption by one spouse and not both to be in the best interests of the child. It’s one of the many reasons you should hire an attorney.

The law makes civil union partners subject to the same adoption laws as married heterosexual couples. Also, the courts may begin to require adoptive gay and lesbian parents to enter into civil union as a means of protecting the rights of the child and the parents under the divorce laws of the state. The courts have an interest in protecting a potential custodial parent of a dissolved civil union to make sure that he/she does not end up in poverty or living a sub-standard life style with the child if there is no means of securing alimony or equitable distribution of property.

So, while civil union may be a requirement, or at least desirable, in some adoption scenarios, it may also be an impediment in others. Being in a legally sanctioned relationship may be an impediment to foreign adoptions or to inter-state adoptions where the state in which the child was born and is being “sent” from to New Jersey may have issues with adopting children to gay/lesbian parents or have prohibitions against recognizing same-sex marriage or other marriage-like relationships. Speaking with a knowledgeable attorney at the start of any adoption process is essential.

CONCLUSION

This article has been provided as an overview and does not constitute legal advice. Every person and family and adoption situation is unique and you should seek legal counsel from experienced attorneys.

Remember, not all lawyers who practice in the areas of adoption are experienced in all areas of adoption and with gay and lesbian family issues. Also remember that the process of bringing children into your lives requires you consider your future responsibilities as well – such as maintaining wills that name guardians and trustees if both you and the child’s other parent should die and powers of attorney to assure you that medical authorizations can be made for a child in the event you are unavailable. Financial planning, including estate tax planning, will become essential.

Best of luck as you move ahead to build your family!
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