Divorce FAQ's

Adoption Info Guide

1. What is an adoption?

Adoption is a legal action that terminates all rights, duties, privileges and relationships between the child and his or her birth mother and/or birth father and any person who has become the child’s legal parent. All adoptions in New Jersey are governed by the statutes found at N.J.S.A. 9:3-38 et. seq. An  adoption establishes the same relationship between the child and the adoptive parent or parents that would exist if the child had been born to them. Thus, an adopted child obtains the right of inheritance. Although many other states permit open adoptions, in New Jersey the birth parents give up all rights to their child under adoptions. New Jersey has not been that progressive in the area of open adoptions.

2. What is an open adoption?

An open adoption is the rage in many states besides New Jersey. An open adoption in theory allows the birth parents continue to have some contact with the child after the adoption is completed. The contact can be very insubstantial such as a simple letter or card on the child’s birthday. Alternatively, the contact can be quite involved such as regular visitations. In many other states an open adoption is a viable legal option that is used very frequently. However, an open adoption is not legally enforceable in New Jersey. In simpler terms, in an open adoption even though the adoptive parents may agree to permit some form of contact between the child and the birth parents, they are not legally bound by these promises. Even if the parties enter into an after adoption care agreement, the adoptive parents are still not bound to this written agreement.

3. Must an adopted child be a minor?

No, but an adult adoption has an entirely different rules. Moreover, an adult adoption is governed by a different set of statutory law(s), that are found at N.J.S.A. 2A:22-1 et seq.

4. What is the legal process for a person to go about adopting a minor?

The process of adoption is basically three-part process. The first part is a nonlegal one. This step involves identifying the birth parents. The second and third steps are part of a legal process. Step two involves the birth parent(s) surrendering their parental rights to the child to a licensed adoption agency or before the court, or having their rights terminated by the court. The third step is the legal process of incorporating the child into the new adoptive family.

5. How does one go about identifying birth parents?

There are several basic ways to identify a prospective birth parent(s) in the adoption process:

a. through an adoption agency;

b. through private placement resulting from networking with friends, family, clergy members or doctors;

c. or through the New Jersey Division of Youth and Family Services’ foster care system.

6. What is an adoption agency?

In New Jersey, an adoption agency is a facility that is licensed to prepare any necessary evaluations of possible adoptive parents’s homes. These reports are called home study reports. These reports are very comprehensive. An adoption agency places children for adoption, and then perform several evaluations of the home environment following an adoption. While these agencies can walk both parties through the adoption process, an adoption only lawyer can finalize an agency placement with the court.

7. What is a foreign adoption?

A foreign adoption is where the child from a country other than the United States and he or she is adopted by a U.S. citizen. Foreign adoptions are extremely complicated. Moreover, there are immigration issues in every foreign adoption. Given the complexity of a foreign adoption, it is best for adoptive parents to use the services of an adoption agency with experience placing children from the country from which they wish to adopt.

8. What is a private placement adoption?

A private placement adoption occurs when the birth parents and the adoptive parents were united by means other than an adoption agency, such as through networking with family, friends, members of the clergy and doctors. In a private adoption there is direct contact between both sets of parents. They often meet before the child’s birth or attend the birth at the hospital. A private adoption can be handled by an adoption attorney.

9. What are the steps an adopting parent and a birth parent must take in a typical New Jersey adoption?

In a private placement, the first step is for the adoptive parents are to prepare a letter to potential birth parents. This letter should include background information about themselves and their lives, as well as photos of their home, family, friends, activities such as vacations and holidays, etc. The adoptive parents should then begin the search to identify birth parents who are interested in placing their child for adoption. This search is typically done through networking, an adoption agency or an adoption attorney. The adoptive parents also must have a current home study, which is prepared by a licensed agency.

The legal process starts once the adoptive parents have identified a suitable birth parent. Thereafter, the medical records of the birth parents will then be provided to the adoptive parents through the adoption agency or through their attorney. In a private placement, they may or may not visit the intended birth parents prior to the birth of the infant. This often depends upon whether such a meeting is requested by the birth parents.

10. What are the procedures if there is an interstate adoption?

If it is an interstate adoption (where the birth parent(s) live in one state and the adoptive parent(s) live in another), then adoptive parents will have to comply with the Interstate Compact on the Placement of Children (ICPC) for both the sending state (the state where the child is born) and the legal process begins once the adoptive parents have identified a birth parent. receiving state (the state of residence for the adoptive parents). Once the baby is born, then the adoptive parents will have travel to the sending state to pick up the child. If permitted by hospital policy, the adoptive parents may be at the hospital for the birth of the child.

The adoptive parents must wait for approval from the sending state’s ICPC before leaving that state with the infant, and cannot return to the receiving state with the infant until they have approval of the adoption from the ICPC of the receiving state. Various documents are required by both the sending state and the receiving state in order for approval to be granted.

Once the infant is in the home of the adoptive parents, a complaint for adoption must be filed within 45 days. Within 90 to 120 days of the child entering the home, the court will then schedule a preliminary hearing. A notice of the adoption must be served upon the birth parents in accordance with the statute if they have not legally surrendered their parental rights, or their rights have not yet been terminated by the court in the sending state. At the time of the preliminary hearing, the birth parents’ parental rights will be terminated if they have not notified the court of their objection to the adoption after being given proper notice. A final hearing will take place six months later, and most courts in New Jersey do not require an appearance at that time.

11. What is a step-parent adoption?

In a stepparent adoption, one parent is the birth parent or adoptive parent and his or her spouse is petitioning to adopt the child.

12. What are the laws in New Jersey concerning single-parent adoption?

A single parent is permitted to adopt under the same laws as a married couple.

13. What are the laws in New Jersey concerning same-sex couples adopting?

Same-sex couples also have every legal right to adopt, just as heterosexual couples may adopt. At this point in time, the law has not been tested in court to determine if any special rules may apply to these adoptions, such as requirements that adopting couples be registered domestic partners or united through civil unions.

14. Do you need a lawyer to handle an adoption?

The adoption process does not make it mandatory to for the adoptive parent to have a lawyer. Nonetheless, there are many possible pitfalls that can take place during the process. Only experienced legal counsel can guide adoptive parents through the process in order to prevent and/or minimize potential problems.

15. Is the birth father’s consent to the adoption process required?

In New Jersey, the birth mother does not have to name the birth father. However, if the father is named then diligent efforts must be made to locate him and obtain his consent to the adoption. Under New Jersey law, if the  birth father is located, in order to contest the adoption he must come forward within 120 days of filing for adoption or prior to the preliminary hearing, whichever comes first.

If the identity of the father cannot be determined, or if the birth mother is unable or refuses to identify the father, and the court is unable, from available information, to identify him, then any notification of the father is waived by the court. If the birth father cannot be found, then it is considered an at risk adoption because he may appear and contest the adoption up until the completion of the preliminary hearing.

16. What happens in the case of a missing parent?

Under New Jersey law, a diligent search must be conducted to locate the missing birth parent. This search includes writing to state agencies using the parent’s name and last known or suspected address. The agencies that must be contacted also include the local post office, the motor vehicles division, the county welfare agency, the municipal and state police, the county probation office, the department of corrections, and any other social service and law enforcement agencies that may have had contact with the individual. The failure to receive a response to these inquiries within 45 days is considered a negative response.

17. What if the child is the result of rape or incest?

The legal requirements are the same if the child was conceived as a result of rape or incest.

18.  What legal rights does a father have to his child if he finds out about the child after the adoption process?

None, unless the birth mother committed fraud by claiming not to know who the father was or intentionally identifying someone else as the birth father. Under New Jersey law, the birth father has 120 days from the birth of the child, or anytime prior to completion of the preliminary hearing for the adoption, to come forward. In New Jersey, having had intercourse is considered sufficient notice that a man may be a parent under the law.

19. Can a birth parent or adoptive parent change his or her mind after an adoption?

No, if the adoption has been finalized by the court, and/or if the birth parents surrender their parental rights or their rights have already been terminated by a court prior to the finalization of the adoption, it is of no legal consequence that the birth parents or the adoptive parents change their minds, unless there was fraud. Once an adoption is finalized, then the adoptive parents have the same rights as any parent to their child.

20. Is a child’s consent (in the case of an older child) necessary in an adoption?

If the child to be adopted is 10 years of age or older, then he or she will be required to appear at the final adoption hearing. The court has the authority to waive this requirement. The child’s wishes concerning the adoption will be considered if he or she is intellectually capable of expressing a preference regarding the adoption.

21. Once an adoption is finalized what happens to the adoption records?

In New Jersey, all records relating to adoption proceedings, including the complaint, judgment and all petitions, affidavits, testimony, reports, briefs, orders and other relevant documents, are sealed by the court clerk, and may not be opened to inspection or copying without a court order, which almost never occurs. In some cases the court may choose to provide an adopted child with medical information without releasing information about the birth parents. The New Jersey Legislature has been considering legislation for several decades that would open adoption records.

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