Introduction
The adoption
of a minor child by a family comprised of the biological parent and the same
sex cohabiting partner of the biological parent has been a topic of particular
interest and heated debate. The fundamental question the New Jersey Appellate
Court recently addressed was whether the Adoption Laws of this State permit
the adoption of children by the same sex cohabiting partner of their natural
mother without affecting the mother's parental rights. In the Matter of the
Adoption of Two Children by H.N.R. the Appellate Division disagreed with the
trial court's negative response to this question.
1 The Court was
persuaded that because the adoption sought plainly served the best interests
of the children, the Judgment of Adoption should be granted.
Legislative Background
Adoption is a statutory creature with no corollary at common
law. An analysis of the Adoption Statue indicates the statutory imperative is
for "this act ... [to] be liberally construed to the end that the best
interests of the children be promoted."
2 The Statute is silent
in respect to either joint adoption by unmarried persons or adoption by an unmarried
cohabitant of the birth mother with the partner's consent. However, there are
two relevant statutory provisions which can be applied to the issue at hand.
N.J.S.A. 9:3-43a provides in pertinent part as follows:
"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."
The second relevant provision is N.J.S.A. 9:3-50 which, proscribes
the legal effects of a judgment of adoption:
b. The entry of a judgment of adoption
shall establish the same relationship, rights, and responsibilities
between the child and the adopting parent as if the child were born
to the adopting parent in lawful wedlock. For good cause, the court
may direct the entry of judgment nunc pro tunc as of the date the action
was instituted. In applying the intestate laws of this State, an adopted
child shall have the same rights of inheritance as if born to the adopting
parent in lawful wedlock.
c. The entry of a judgment
of adoption shall:
(1) terminate all parental
rights and responsibilities of the parent towards the adoptive child
except for a parent who is the spouse of the petitioner and except those
rights that have vested prior to entry of the judgment of adoption;
(2) terminate all rights
of inheritance under intestacy from or through the parent unless that
parent is the spouse of the petitioner or that parent or other relative
had died prior to the judgment of adoption; and
(3) terminate all rights
of inheritance under intestacy from or through the child which existed
prior to the adoption.
d. The court may order counseling
for the adopting parents.
The trial court In the Matter of the Adoption of
Two Children by H.N.R., held that since the plaintiff was not the legal
spouse of the natural mother, she could not qualify as a step-parent,
since it would have the effect of terminating the biological mother's
rights. The trial court read §9:3-43a literally, whereas the Appellate
Court chose a less restrictive interpretation.
Adoption in New Jersey
A variety of new concepts were brought to the adoption process
through a comprehensive revision of the adoption laws.3
The new law resolved some of the problems that have faced all parties in the
adoption situation. For example, it provided that a married person could adopt
if living separate and apart from his spouse.4 Elements of the new
law were aimed at improving or facilitating the original placement process.
Children become legally viable for adoption in one of three ways: the death
of their parents, the voluntary surrender by their parents of their parental
rights, or by a proceeding in which the parent's rights are terminated.
The new law also modified the restriction against using unpaid
intermediaries and followed the great majority of states where an intermediary
is permitted to introduce prospective adoptive parents. A child could be adopted
by application to a licensed adoption agency (agency adoption), or by direct
placement of the child either by the child's parent with the prospective adopted
parent (private placement). As set forth above, a single person can adopt, a
married couple can adopt and separated individuals can adopt. However, the statutory
scheme does not provide for two single or unmarried people to adopt the same
child.
Case Law
New Jersey courts have always focused on the best interests
of the child. They have also focused on the legislative intent rather than a
strict reading of the statutory language. For example, In Re Adoption of a Child
by A.R. the adoption complaint was brought by the child's birth father who was
unable to marry the child's birth mother because of her incompetence.5
The Court permitted the unmarried biological father to adopt the minor child
as though he were the stepfather, thereby preserving the biological mother's
rights.
That proposition was relied upon by a trial court in approving
the adoption by a woman of the biological child of her lesbian partner. In the
Matter of the Adoption of a Child by J.M.G., Judge Freedman reasoned that the
stepparent provision of N.J.S.A. 9:3-50 should not be narrowly construed so
as to defeat an adoption that is clearly in the child's best interest.6
In Klipstein v. Zalewski, the court explained that the public
policy in this State is to protect the best interests of the child above rigid
constructions of the term "family."7 In J.M.G., supra.,
the court recognized that the case arose at a time of "great change and
a time of recognition that, while the families of the past may have seemed simple
formations repeated with uniformity (the so called 'traditional family') families
have always been complex, multifaceted, and often idealized."8
The court acknowledged that families "differ in both in size and shape
within and among the many cultural and socio-economic layers that make up this
society."9
In the recent case, In the Matter of the Adoption of Two
Children by H.N.R., supra., the plaintiff Hannah was the committed partner of
Mary. They had lived together for fourteen years and regarded their relationship
as permanent. Both women were employed and owned a home in a prosperous suburban
community which they purchased as joint tenants with the right of survivorship.
Most of their assets were also in joint ownership. The couple discussed their
prospect of having children. Wanting a baby, Hannah attempted to conceive by
anonymous-donor artificial insemination, but was unsuccessful. Mary, however,
was successful. She gave birth to twins, a baby boy Z. and a baby girl M. in
August, 1992. The children called Hannah "Mom" and Mary "Mommie"
and all decisions regarding their upbringing were made jointly by the two women.
Both women were in favor of Hannah's adoption of the twins. Although neither
could foresee that a judgment of adoption would affect any fundamental change
in the way the family lived, they were both desirous of creating a legal relationship
between Hannah and the children in order to confer dependency benefits on them,
such as coverage under Hannah's employer provided health insurance, and in general
to assure continuity of the custodial and financial rights and responsibilities
characterizing the parental relationship. Mary executed a consent to Hannah's
adoption of the children and, accordingly, Hannah filed a Complaint for Adoption.
The report of the licensed adoption agency was strongly supportive of Hannah's
adoption. The agency found that both parents provided traditional love and physical
and financial care of the children. The trial court, however, denied the application
on the grounds that same-sex partner adoptions are not permitted under the New
Jersey Adoption Statute.
The trial court reasoned that since the plaintiff was not
the legal spouse of the natural mother, she could not qualify as a stepparent
and, consequently, her adoption petition could not be granted since it would
have the inevitable and unintended effect of terminating the biological mother's
parental rights. The Appellate Court held that the trial court's reading of
the statute was erroneously over-restrictive and was persuaded that the statutory
provision, read in context and construed in light of both the liberal construction
mandate and the best interests test, did not support the trial court's denial
of the petition.10 The Court further reasoned that the stepparent
exception to the natural parent's termination of rights should not be read literally
and restrictively if doing so would defeat the best interests of the children.
To do otherwise would produce a wholly absurd and unattainable result, according
to the Court.11 The Court concluded that the adoption should be entered.
Other states have recently considered the precise question
in similar factual contexts involving almost identical statutes. In construing
its statute liberally, the Vermont Supreme Court reasoned that "(w)hen
the statute is read as a whole, we see that its general purpose is to clarify
and protect the legal rights of the adopted person at the time the adoption
is complete, not to proscribe adoptions by certain combinations of individuals."12
Noting that the precise circumstances of these adoptions may not have been contemplated
during the initial drafting of the statute, the Vermont Court found that the
general intent and spirit of §448 (which is analogous to N.J.S.A. 9:3-50)
is entirely consistent with them.13 Courts must acknowledge and appreciate
the evolution of non-traditional families in society.
In New York, the State's highest court recognized the right
of an unmarried partner of a child's biological mother, whether heterosexual
or homosexual, who is raising the child together with the biological parent,
to become the child's second parent by means of adoption.14 New York
became the third state after Vermont and Massachusetts to have its highest court
recognize this right. The Court based its decision on the belief that the fundamental
purpose of the New York State Adoption Laws is to protect the best interests
of the children.
The New York decision actually involved two cases which the
high court heard in tandem: one brought by a heterosexual couple and the other
by a lesbian couple. In the first case the biological mother was awarded sole
custody when she and the child's father separated prior to the child's birth.
They were subsequently divorced. The mother and her live-in boyfriend filed
a petition to allow him to adopt the child. The child's biological father agreed
to the adoption, but the lower court denied the petition.
The other
case involved a lesbian couple that had been together for nineteen years. The
couple decided that one of them would have a child through artificial insemination.
They planned to raise the child together. One partner gave birth to a girl,
Dana, and the other partner filed a petition for adoption. A lower court rejected
the petition. In reversing the lower court, the Appellate Court stated "to
rule otherwise would mean that the thousands of New York children actually being
raised in homes headed by two unmarried persons could have only one legal parent,
not the two who want them."15 However, some disagreed with the
Court's decision. A somewhat critical response came from New York State Governor
George E. Pataki who said that the high court had overstepped its boundaries.
"Policy matters such as this and numerous criminal law decisions should
be made by the elected officials of the people, namely the Legislature and the
Governor, and not by an appointed judiciary."16 The decision
brought some unity, however, to dissenting judicial voices in the New York lower
courts, which had left no uniform decision throughout the State prior to the
New York's highest Court's decision.
The Supreme Judicial Court of Massachusetts ruled that two
unmarried women could jointly adopt the child who was the biological daughter
of one of the women and the biological cousin of the other.17 At
the time the petition was filed, Helen maintained a private practice in general
surgery and Susan was a nationally recognized expert in the field of breast
cancer. Both women held positions on the faculty of the Harvard Medical School.
Efforts at artificial insemination through Susan's brother had failed. However,
Susan successfully conceived a child through artificial insemination by Helen's
biological cousin. Since her birth, Tammy had lived with and been supported
by Helen and Susan and viewed both women as her parents. The Court held that
it was in the best interests of the child to be adopted by the woman with whom
her mother cohabited and for the biological mother to retain postadoptive parental
rights of custody and visitation pursuant to its equitable powers. The Court
found that the women had a stable and committed relationship and both participated
equally in parenting the child. In addition to the practical benefits the child
would receive from legal recognition of her actual parent relationships, the
adoption would also allow her to maintain her unique filial ties to the mother's
partner if the mother predeceased her partner, or if the mother and partner
separated.
Non-nuclear families are a growing percentage of today's
families and courts must acknowledge and appreciate the evolution of non-traditional
families in society. Further, it is well recognized that there can be a psychological
parent/child relationship between the child and parties other than biological
parents.18 Cases such as Baby Jessica and Baby Richard call attention
to the conflicting interests of biological parents and the children who bond
with other psychological parents.19
Statistics show that in 1990, only seventy percent of American
children resided in marital homes with both biological parents. Almost fourteen
percent of the nation's children resided with only one parent in a non-marital
home shared with another adult.20 "In 1993, there were 3.5 million
'unmarried couple households' with children."21 "The statistics
show there were 145,000 'unmarried partner households' of the same sex and over
3 million 'unmarried partner households' of the opposite sex."22
Conclusion
In view of the preceding decisions, the child of an unmarried
couple will be entitled to an array of rights and privileges from both parents,
including health insurance benefits, social security and inheritance rights.
It will further allow both parents to make medical and educational decisions
for a child. Another advantage will include life insurance benefits in the event
of a parent's death or disability and the right to sue for the wrongful death
of a parent. Last, granting a second parent adoption further ensures that two
adults are under a legal obligation for the child's economic support. To do
otherwise would put the children at risk if the biological parent were to die.
For example, a biological grandparent could come forth and challenge the custody
of the non-adoptive spouse.
The Vermont Court correctly concluded that its paramount
concern should be how the laws affect the reality of children's lives.23
The courts did not cause the diverse composition of today's families, but rather
"the advancement of reproductive technologies and society's recognition
of alternative lifestyles ... have produced families in which a biological,
and therefore a legal, connection is no longer the sole organizing principle."24,
25
The decisions also allow children to achieve a measure of
permanency with both parents. This is clearly in the best interests of the children.
To deny children of same-sex partners, as a class, the security of a legally
recognized relationship with their second parent serves no particular State
interest.26 For opponents who argue that the legislature should speak,
or for those who have problems with same sex partners cohabiting because of
moral views, they still cannot deny that the best interests of the children
in these families are served by allowing the non-biological parent to adopt.
These adoptions have been allowed in cases where the children were well cared
for, and considered both partners to be their parents. The courts have correctly
noted that nothing much would change in the children's everyday lives as they
would not be removed from these families no matter how the issue of adoption
was decided by the court.
Reprinted with permission from the New Jersey Lawyer Magazine,
a publication of the New Jersey State Bar Association
