lgbt adoption, child custody & assisted reproduction in new jersey

Bedminster • Freehold • Hackensack • Mount Laurel • Parsippany

LGBT Parents: Becoming a FamilyE S TA B L I S H I N G P A R E N TA L R I G H T S & R E S P O N S I B I L I T I E S I N N E W J E R S E Y

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LGBT PARENTS: BECOMING A FAMILY

DISCLAIMER

This presentation contains general information and does not constitute legal advice.

Be sure to direct specific questions about your own situation to an attorney.

LGBT PARENTS: BECOMING A FAMILY IN NEW JERSEY

• Introduction

• Adoption

• Assisted Reproduction

• Psychological Parent Doctrine

• Basics of New Jersey Custody and Support Law

LGBT PARENTS: INTRODUCTIONLGBT PARENTS 1. INTRODUCTION

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LGBT PARENTS: 1. INTRODUCTION

Becoming a Family A Goal and a Challenge for Many Couples

• Many same-sex couples adopt children.

• Many others have children that are the legal (natural or adopted) child of only one parent.

• Couples should clarify intentions and parental status as early as possible in their relationships.


B e co m i n g a Fa m i l y :E sta b l i s h i n g L e ga l Pa re nta l S tat u sWhy is establishing legal parental status important?

• Legal parents make many important decisions for minor children.

• A parent’s legal status may entitle children to certain benefits such as health care coverage, inheritance rights, social security benefits, life insurance, pension payments, and veteran’s benefits.

• If parents split up, legal status will control:

• Rights to custody or parenting time, and

• Responsibility for payment of child support.

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E sta b l i s h i n g L e ga l Pa re nta l S tat u s• State law generally controls parental status.

• Laws pertaining to adoption vary from state to state.

• Laws regarding parental status based on assisted reproduction vary even more so.

• Laws are also changing rapidly due to advances in reproductive technology.

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Pa re nta l stat u s o f ge n eti c or b i r t h p a re nt s

Before a third party can gain parental status, the rights of one or both genetic or birth parents must generally be terminated by:

• Voluntary donation of a gamete or an embryo, which may or may not sever all rights of the donor prior to a child’s birth,

• Voluntary surrender of a child to an agency in compliance with all legal requirements, made more than 72 hours after birth, or

• Voluntary or involuntary termination through an adoption or termination proceeding in court.

LGBT PARENTS: NEW JERSEY ADOPTION BASICSLGBT PARENTS : 2. ADOPTION BASICS

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LGBT PARENTS: 2. ADOPTION BASICS

There are several avenues to becoming an adoptive parent in New Jersey, including:

• State Agency Adoption,• Private Agency Adoption (which can include out-of-state or international adoption),• Private Placement Adoption, and• Second-Parent Adoption.

New Jersey Adoption Options


• Are you eligible for second-parent adoption?

• Are you interesting in working directly with birth parents?

• What is your budget for fees and expenses?

• Would you consider acting as a foster parent?

• How do you feel about open versus closed adoption?

• Are you interested in pursuing an international adoption?

• Would you consider adopting a child of another race?

• Would you consider adopting a child with a medical condition or handicap?

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New Jersey AdoptionA Few Questions to Consider

SAFETY

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New Jersey AdoptionWhat to Expect

Requirements differ depending on the type of process. Second-parent or step-parent adoptions are generally simpler, with fewer requirements. Be prepared for some or all of the following:

• Criminal and child abuse background checks.

• Disclosure of financial, medical and employment information.

• Personal references.

• Home study/home visits.


• The New Jersey Office of Adoptions Operations is within the Department of Children and Families, Child Protection & Permanency.

• As a state agency, DCF does not discriminate on the basis of sexual orientation.

• The majority of children are placed through the foster care program.

• The state will pay for certain expenses associated with foster care and with state adoptions, including attorneys fees.

• For more information, go to the Office of Adoptions website or call 1-877 NJ FOSTER.

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State Agency Adoption

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• Many private licensed adoption agencies in New Jersey are friendly to gay and lesbian individuals who wish to become parents, either on their own or with a partner.

• The All Children – All Families Initiative of the Human Rights Campaign (HRC) maintains a list of agencies that have met, or are seeking to meet, 10 benchmarks in LGBT cultural competency.

• With private agency adoption, a child is generally placed in the home for six months before an adoption hearing is scheduled.

• Be sure to ask any agency detailed questions about policies and success rates.

Private Agency Adoption

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• In a direct adoption from birth parent(s), the adoptive parents must file a complaint for adoption within 45 days of receiving the child.

• The parental rights of the birth parents are generally not terminated until a preliminary hearing 2 or 3 months later.

• New Jersey law prohibits paying anyone to act as a birth mother or to locate a birth mother, but it is permissible to pay a birth mother’s pre-natal and general medical care, plus certain other expenses related to the adoption.

• Consult with an adoption attorney before entering into any private placement agreements with birth parents

Private Placement Adoption


• Adoptions of children born out of the prospective parents’ state of residence must comply with the Interstate Compact for the Placement of Children (ICPC).

• The ICPC ensures that children are uniformly protected, regardless of which state they are moving to or from.

• The interstate process may take longer, and a prospective parent may need to stay in the placing state pending completion.

• Consult with an experienced adoption attorney to be certain that you understand what will be involved. 16

Out-of-State Adoption


• International adoption can be more expensive and more complicated than adopting a child within the United States.

• Depending on the country, it may also be more challenging for single gay or lesbian parents or same-sex couples to adopt.

• Some couples have found it easier for one partner to adopt a child as a single parent and for the partner to complete a second-parent adoption in the United States.

• Consult with an attorney who is familiar with the procedures and any applicable restrictions in your country of interest. 17

International Adoption


• Second-parent or “co-parent” adoption is adoption by a person petitioning for joint parental rights with another person who is already a legal parent.

• This procedure is available for same-sex or opposite-sex couples where one partner is a natural parent, or one partner has already adopted a child as a single parent.

• A second parent can file for adoption in New Jersey based solely on the fact that the child was born in New Jersey, provided that the filing is completed within 3 months of the child’s birth.

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Second-Parent Adoption

LGBT PARENTS: ASSISTED REPRODUCTION AND PARENTAL RIGHTSLGBT PARENTS : 3. ASSISTED REPRODUCTION

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LGBT PARENTS: 3. ASSISTED REPRODUCTION

Assisted Reproductive Technology

• Two mothers can now use donated sperm while one of them carries the child.

• Two fathers can use a surrogate and a donated egg or embryo.

• The proliferation of options has created a challenge for legislators and courts trying to keep abreast of science while also fairly determining competing parental claims.

Assisted reproductive technology has been a boon for same-sex couples, as well as infertile individuals of any sexual orientation.

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The “Baby M” Case

• The contract in Baby M. promised the surrogate $10,000 cash; the biological father and his wife were to adopt the child.

• The surrogate refused to give up parental rights after the birth.

• The Court invalidated the contract, stating that no parent can contractually relinquish parental rights.

In 1988, the New Jersey Supreme Court declared that contracts covering traditional surrogacy (in which the surrogate carries a child conceived from her own egg) were completely invalid.

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The New Jersey Parentage Statute

• A natural mother need only prove she has given birth to the child.

• A natural father can pursue various other routes, including signing a voluntary acknowledgement of paternity, or undergoing DNA testing. N.J.S.A. 9:17-41, et seq.

• The statute makes it fairly easy to raise a presumption of paternity, because its major purpose is to ensure that a child is acknowledged and supported by two parents.

The New Jersey Parentage Statute confers legal status on a child’s “natural or adoptive parents.” N.J.S.A. 9:17-39.

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M a r i ta l P re s u mpti o n s o f Pate r n i t y

• The Parentage Statute makes it especially easy for fathers married to biological mothers to establish paternity.

• N.J.S.A. 9:17-43 provides that a man is presumed to be the biological father of a child if he and the biological mother are married (or in some cases simply intended to be married), and the child is born either during the marriage or within 300 days after termination of the marriage.

TIMING OF BIRTH

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Section 9:17-44 of the Parentage Statute also provides that a husband will be the legal father of a child if, with both spouse’s written consent, his wife is artificially inseminated with donated semen under physician supervision.

The semen donor will have no parental rights unless the mother has signed a written contract with him to the contrary.

Marital Presumptions of PaternityArtificial Insemination

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N ew J e rs e y Pa re nta ge S tat u te

• Language referring to “her” husband or “his” wife, and to “father” or “mother” instead of “parent,” is gender-based.

• Gender-based differentiations may be valid if based on real biological distinctions between men and women.

• Statutes will be interpreted in a way that is constitutional if possible.

CHALLENGES TO CONSTITUTIONALITY

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In 2005, a mother carrying a child conceived via donor insemination asked a New Jersey superior court to extend the paternity presumption in N.J.S.A. 9:17-44 to her committed female partner.

Over the objection of the State Attorney General, the court allowed the partner to be designated as a parent on the birth certificate.

New Jersey will now issue birth certificates for registered domestic partners, civil union couples, or married couples where one partner carries a child conceived via an anonymous sperm donation.

New Jersey Case Law Artificial Insemination

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Some couples prefer to go through the insemination process at home rather than in a doctor’s office.

This is sometimes referred to as “alternative insemination,” rather than the more clinical sounding, “artificial insemination.”

At home donor insemination is legally risky, because the law that allows a donor to relinquish rights applies only when the process is carried out “under physician supervision.”

Failing to have direct physician supervision during the process could result in the donor being able to change his mind about relinquishing parental rights.

New Jersey Case Law “Alternative” Insemination

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In 2012, the New Jersey Supreme Court refused to further extend the marital presumptions pertaining to sperm donation to egg or embryo donation when a child is being carried by a surrogate.

In T.J.S., a woman claimed that she was entitled to a presumption of motherhood for a child conceived with her husband’s sperm and an anonymous donor’s ovum, and carried by a gestational surrogate who had signed a written agreement to relinquish parental rights.

The couple requested a declaration of parentage and a pre-birth order to put both their names (and not the surrogate’s) on the birth certificate.

New Jersey Case LawEgg or Embryo Donation

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Unlike sperm donation, carrying a baby not only creates an emotional bond, but also real biological ties, as the gestational mother's endocrine system profoundly affects fetal development; and

New Jersey’s adoption statute prevents any birth mother, whether genetically related to the child or not, from executing a valid surrender of a child less than 72 hours following the child’s birth.

New Jersey Case LawEgg or Embryo Donation

The TJS court concluded that the intended mother must pursue a second-parent adoption, emphasizing that:

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In 2000, a superior court judge ruled, in the case of AHW, that two genetic parents could be named on a child’s birth certificate, when the surrogate was carrying a child conceived via the intended father’s sperm and the intended mother’s egg.

The order in AHW included a 72 hour hold to allow the birth mother time to relinquish her rights.

The court declined to address what might occur if the birth mother changed her mind and refused to relinquish such rights.

New Jersey Case Law Surrogacy with Two Genetic Parents

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Yes, but only with full knowledge of the applicable laws and the risks for all parties.

The non-genetically related partner must pursue second-parent adoption to ensure legal parent status.

If you and your partner wish to use a surrogate, be sure to get as much information as possible regarding procedures and costs.

Above all, be sure that both you and your intended surrogate have adequate and separate legal representation.

Is Gestational Surrogacy Still an Option in New Jersey?

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In June of 2015, Bill S-866/A-2648, validating gestational surrogacy contracts that complied with certain detailed requirements, was favorably reported on by the Assembly Human Services committee and passed by both houses in the New Jersey legislature.

The bill defined permissible expense payments and included medical and psychological prescreening evaluations for potential surrogates,

Governor Christie vetoed this bill.

Proposed Legislative ChangesThe New Jersey Parentage Statute

LGBT PARENTS: PSYCHOLOGICAL PARENT DOCTRINELGBT PARENTS : 4. PSYCHOLOGICAL PARENTS

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LGBT PARENTS: 4. PSYCHOLOGICAL PARENTS

Psychological Parent Doctrine

If you have been co-parenting a child that is not your own natural or adopted child, a New Jersey court will consider what your parenting role has been and whether both you and the legal parent intended for you to be a co-parent to the child.

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Psychological Parent Doctrine:

• The legal parent consented to, and fostered, a third party’s parent-like relationship with the child,

• The third party and the child lived in the same household,

• The third party assumed significant responsibility for the child’s care, education and development, and support (financial or otherwise) without any expectation of compensation, and

• The third party’s parent-like role continued for long enough to establish a bonded, dependent, parent-child type of relationship.

R E Q U I R E D E L E M E N T S

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The Future

• In February of 2016, a New Jersey trial court examined a “tri-parenting” agreement among three friends—a genetic birth mother and two male partners, one of whom was the genetic father.

• The agreement started out well, but went awry when the mother wanted to move out-of-state and take the child with her.

• The court found that the second father could not be a legal parent because he had not adopted the child, but that he was a psychological parent with custody rights equal to those of the two legal parents.

• The court awarded joint custody to all three parents.

M O R E T H A N T W O P A R E N T S ?

LGBT PARENTS: NEW JERSEY CUSTODY AND SUPPORT BASICSLGBT PARENTS: 5. CUSTODY AND SUPPORT

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LGBT PARENTS: 5. CUSTODY AND SUPPORT

• State law governs parenting orders and agreements (N.J.S.A. 9:2-4).

• The overriding concern is the “best interests” of the children.

• New Jersey favors “frequent and continuing contact” with both parents.

• Parents are encouraged to make their own agreements.

• Parents can agree on any combination of physical and legal custody that addresses a child’s best interests.

New Jersey Family Law Chi ld Custody and Parenting Time

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• Payment of child support in New Jersey is governed by state statute (N.J.S.A. 2A:34-23) and calculated according to a formula.

• Child support guidelines and forms for calculation are contained in New Jersey Court Rules (5:6A and Appendix IX).

New Jersey Family Law Payment of Chi ld Support

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New Jersey Chi ld SupportPayment Amount and Al location

Primary Factors:

• The parents combined income (can be imputed),

• The number of children,

• Each parent’s percentage share of combined income, and

• The amount of time a child spends with each parent.

Who Pays:

• Each parent is responsible for a percentage of support.

• Non-custodial parent pays support to custodial parent.

• With shared physical custody, either parent could pay.

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• Claims for custody, visitation or child support can be part of a divorce case, or can be initiated as a non-dissolution application in the Family Part of the Superior Court.

• If the child or the parent lives out-of-state, consult with an attorney to be sure that New Jersey has jurisdiction to hear the claim.

• Temporary orders are available at the outset of a case if you need immediate help from the court.

New Jersey Family CourtParenting or Chi ld Support Claims

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• If you and your co-parent can work together, consider private mediation as a way to resolve your parenting issues.

• One of you will still need to file court papers to have an enforceable agreement, but mediation can come first.

• Mediation protects children from conflict and can reduce costs.

• A mediator does not represent either party, each of you may still need separate attorneys, unless you choose to represent yourselves.

Private Mediation for Parenting DisputesA Better Option for Famil ies

Court-Ordered Mediation Custody or Parenting Time

DisputesThe court sends most cases involv ing custody or

parent ing t ime issues to court-mandated parent ing mediat ion.

Each parent proposes a parent ing p lan.I f parents cannot agree in mediat ion, the case is put on a pr ior i ty t rack and the court schedules a hear ing

with in 6 months.


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Custody Investigations & Evaluations

FAMILY DIVISION INVESTIGATIONS

• Parents can jointly hire a mental health expert to conduct the investigation and prepare the report, or

• Parents can each hire their own expert

• Child custody evaluators must be neutral and follow uniform standards, regardless of who hires them

PRIVATE CUSTODY EVALUATIONS

• The judge can order a social investigation and “best interests of the child” report

• May include home inspections

• May also include psychological, psychiatric, parental functioning assessments or mental health evaluations if necessary

• The judge can also interview the child in chambers

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CHILD CUSTODY 101: NEW JERSEY COURT PROCEDURES

Potential triggering events: A decrease or increase in parenting time, A change in the primary residential parent, A change from sole custody to joint custody or

vice versa.

Courts considering a request for a major change will require proof that the change is necessary to further the child’s best interests.

Post Judgment ModificationsSubstantial Change in Circumstances

For more information on new jersey child custody, see our companion presentation: Child Custody 101: An Introduction to New Jersey Child Custody

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QUESTIONS? CAN WE HELP?

FOR MORE INFORMATION ABOUT NEW JERSEY FAMILY LAWvisit Weinberger Law Group.com,

or consult our various books on Divorce, Child Custody, Child Support, and more:

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