Plaintiffs seek to adopt Robert Richard Dickinson, a minor above the age of 14, to change his name to Robert Richard Jacques. Defendant, natural father of the infant, opposes the application and has not executed a written consent thereto.
Upon complaint and answer a full hearing was held during which all the parties in interest, including the infant, testified.
At the outset, in view of the absence of the written consent of the father, a question of jurisdiction arises.
N.J.S.A. 9:3-20 (L. 1953, c. 264, sec. 4, p. 1770, effective January 1, 1954) states the court in which an adoption action shall be instituted. It provides:
"An action for adoption shall be instituted in the Superior Court; or it may be instituted in the County Court of the county in which the plaintiff is domiciled, except that * * * (b) whenever a parent of the child to be adopted was granted a divorce from the other parent by the Superior Court, the action shall be instituted in the Superior Court * * *."
Since the natural parents have been divorced in New Jersey there is no doubt that the suit was instituted in the proper court.
Neither the present statute nor rules of court require that the natural parents consent to the adoption. N.J.S.A. 9:3-19 permits a natural parent to "place, offer to place, or assist in the placement of a child for the purposes of adoption"; if this provision were to be construed as requiring at least one parent's consent then in the instant case, the natural mother has duly consented in writing.
R.R. 4:112-2, which deals with contents of the complaint to be filed in an adoption proceeding, has many requirements, none of which is consent of either natural parent.
True, R.S. 9:3-4, repealed by L. 1953, c. 264, effective January 1, 1954, provided that when the consent of one parent was not presented with the petition by reason of divorce, if the court granting the divorce has made an award of the custody of the child, consent of such court to the adoption must be presented with the petition. This statute was not re-enacted by the Legislature. When the repealed statute was in effect and the consent of the court was given, the hearing court still concerned itself with facts showing whether or not the best interests of the child would be promoted by permitting the adoption. Stawicky v. Stawicky , 12 N.J. Super. 72 (App. Div. 1951).
By the repeal of the requirement for the consent of the natural parents, the Legislature removed an incongruous situation from this field of law, where a justified adoption advantageous to the best interests of the child could be defeated.
Even if statutorily the consent of the natural father was required, the court would not want for jurisdiction.
In dealing with the custody and control of infants, their welfare and happiness, and not their filial affections, is the primary consideration. The natural right of the father to the custody of his child is not an absolute property right, but rather a trust reposed in the father by the State as parens patriae. Lippincott v. Lippincott , 97 N.J. Eq. 517 (E. & A. 1925).
The present statute N.J.S.A. 9:3-27, sec. (C) , evinces this governing policy:
"If, from the report and the evidence presented, the court shall be satisfied that the best interests of the child would be promoted by the adoption, the court shall enter a judgment of adoption."
In addition to the above, our former Court of Errors and Appeals in Winans v. Luppie , 47 N.J. Eq. 302 (1890), reversed the Prerogative Court, which had adjudged that the statute entitled "An Act providing for the Adoption of Children," approved March 9, 1877, Rev., p. 1345, then in existence, required the written consent of the parents as well when the child is under the age of 14 as afterwards, and held that under the mentioned statute a parent may be deemed to have abandoned his child, so as to render his written consent to the adoption of the child unnecessary when his conduct has evinced a settled purpose to forego all parental duties and relinquish all parental claims to the child. Also, that when such an abandonment has taken place and certain conditions subsequently arise, such an abandonment may lawfully be deemed irrevocable. See Gardner v. Hall , 132 N.J. Eq. 64, 78 (Ch. 1942) affirmed 133 N.J. Eq. 287 (E. & A. 1943); Lavigne v. Family and Children's Society, &c. , 11 N.J. 473, 480, 481 (1953).
It would be strange indeed if it were permitted on one hand to say that adoption must be denied if one parent fails to consent, and on the other hand say that a parent who has forsaken parental obligations ...