LGBT Adoption, Child Custody & Assisted Reproduction in New Jersey

Bedminster • Freehold • Hackensack • Mount Laurel • Parsippany
LGBT Parents: Becoming a Family
E S TA B L I S H I N G PA 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:
INTRODUCTION
LGBT PARENTS 1. INTRODUCTION

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.
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Becoming a Family:
Establishing Legal Parental
Status
Why 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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Establishing Legal Parental
Status
• 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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Parental status of genetic or
birth parents
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.
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LGBT PARENTS:
NEW JERSEY ADOPTION BASICS
LGBT PARENTS : 2. ADOPTION BASICS

LGBT PARENTS: 2. ADOPTION BASICS
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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 Adoption
A Few Questions to Consider
SAFETY

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New Jersey Adoption
What 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 RIGHTS
LGBT 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.

Marital Presumptions of
Paternity
• 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 Paternity
Artificial Insemination

New Jersey Parentage
Statute
• 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 Law
Egg 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 Law
Egg 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
Changes
The New Jersey Parentage
Statute

LGBT PARENTS:
PSYCHOLOGICAL PARENT
DOCTRINE
LGBT PARENTS : 4. PSYCHOLOGICAL PARENTS

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 PA R E N T S ?
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LGBT PARENTS:
NEW JERSEY CUSTODY AND
SUPPORT BASICS
LGBT PARENTS: 5. CUSTODY AND SUPPORT

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• 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
Child 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 Child Support

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New Jersey Child Support
Payment Amount and Allocation
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 Court
Parenting or Child 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 Disputes
A Better Option for Families

Court-Ordered Mediation
Custody or Parenting Time Disputes
The court sends most cases involving custody or parenting time
issues to court-mandated parenting mediation.
Each parent proposes a parenting plan.
If parents cannot agree in mediation, the case is put on a
priority track and the court schedules a hearing within 6
months.

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
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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

CHILD CUSTODY 101: NEW JERSEY COURT PROCEDURES
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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 Modifications
Substantial 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

QUESTIONS? CAN WE HELP?
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FOR MORE INFORMATION ABOUT NEW JERSEY FAMILY LAW
visit Weinberger Law Group.com,
or consult our various books on Divorce, Child Custody, Child Support, and
more:

Bedminster • Freehold • Hackensack • Mount Laurel • Parsippany
WeinbergerLawGroup.com
(888) 855-3014
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LGBT Adoption, Child Custody & Assisted Reproduction in New Jersey

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