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Undoing an Adoption in New Jersey Isn't Easy

adop.pngParenthood can be a roll of the dice. No one knows what the outcome will be at the end of 18 years, when a child becomes an adult - the most parents can do is try to raise him or her to the best of their ability. This is the same for both biological and adoptive parents, but the situation can become extremely awkward when adoptive parents no longer want to, or no longer are able to, care for the child they took on.

In a recent case, V.H. and C.H. v. N.J. Division of Child Protection and Permanency, a New Jersey Superior Court judge decided that a final judgment of adoption can be vacated, but not in that case. The adoptive parents claimed that the Division of Child Protection and Permanency (DCPP), which used to be called DYFS, committed fraud in not disclosing information about the child's biological parents' mental health and drug addictions. The Court noted, though, that the child had been cared for by the adoptive parents for about 7 years (during which time they could have gotten that information), making the requested revocation of the adoption too late.

The judge also rejected the adoptive parents' claim that unusual circumstances (instances of physical and sexual assault against the parents and siblings) made the child a threat to others living in the home. The court ultimately held that, "[t]his case, while terribly sad, does not involve 'unusual circumstances' but rather the uncertainty of becoming a parent either through the biological or adoptive process."

There are four types of adoptions under the law: adult adoptions, agency adoptions, private adoptions, and adoptions that happen after biological parental rights have been terminated. Once final entry of adoption is entered, the "same relationships, rights, and responsibilities between the child and adopting parent as if the child were born to the adopting parent in lawful wedlock" exist, while the rights of the biological parents are terminated.

A final judgment of adoption, however, can be reversed by either the adoptive or biological parents. For example, the birth parents can regain their parental rights with the court's permission and consent from the adoptive parents. In either case, the courts will look at the best interests of the child in deciding whether the adoption should be revoked. While it's rare for that to happen, New Jersey courts will do so if there are unusual circumstances that make the living arrangement detrimental to the child-merely releasing the adoptive parents from the responsibilities of parenthood is not enough. If a particular case doesn't meet the high standard of reversal, courts will encourage families with strained relationships to seek other remedies, like therapy or out-of-home living arrangements.

It's true that the "due diligence" that should guide biological parents in deciding to have a child is more burdensome for those who want to adopt. But the risk of a judge saying "no" to a request for reversal more than justifies it. Loree Varella, Rutgers School of Law Newark candidate for a JD degree in May 2016 collaborated with me on this blog. She is Associate Editor of the Rutgers Computer and Technology Law Journal and Managing Research Editor of that publication.

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