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In re Adoption of Children

Decided: May 14, 1976.

IN THE MATTER OF THE ADOPTION OF CHILDREN BY O.


Griffin, J.s.c.

Griffin

This is an action to set aside a judgment of adoption of three minor children. There is no reported case in New Jersey in which such an action has been successful.

Both the adopting father (F) and the natural mother (M) seek this relief. The guardian ad litem for the children resists.

The following facts were either stipulated or were substantially undisputed. The natural father died in 1971 leaving three minor children. F and M were married in March of 1972. There was trouble in the marriage almost from the start. M felt that adoption by F would "knit our family

together and help save the marriage". In January 1973 the adoption action was started. In August 1973 M left with the children but returned in about one week. On September 14, 1973 a judgment of adoption was entered. From that day on, F and M did not cohabit as man and wife. Two or three weeks later she decided to leave and admittedly abandoned F, taking the children with her. On July 9, 1975 F secured a divorce on the grounds of desertion.

The oldest child was five at the time of the adoption. They are all now in school. They have always used the name of their deceased father and M resumed this name following her divorce.

With one minor exception, F has not seen the children since 1973. M testified that the children do not know him and it would "blow their minds" if they thought F was their father.

Shortly after the adoption hearing, but after M had left, F received the certificates from the surrogate and the adoption data forms (see N.J.S.A. 9:3-31) to be signed and forwarded so the birth records could be changed. He communicated with his wife. Both F and M, independently, called the attorney who handled the adoption and requested it be stopped. He assured each, on several occasions, that it would be. Each lived his life accordingly. The attorney took no action.

M testified that F would never be a father to the children. He has remarried. She receives $650 a month from Social Security for the children because of the death of their father. She is employed and earns from $100 to $140 a week, depending on her hours. Her inheritance from her deceased husband is now worth about $125,000, including a mortgage free home. She wants no financial help from F.

The action of this court will make no difference in the living conditions of the children. They will stay with M. F will stay with his new wife and not see them.

This action is analogous to a motion to set a judgment aside. Procedurally, it might have been so handled. The court has no difficulty with the fact that the judgment of adoption is over one year old (see R. 4:50-2) or with its power to control, vacate or correct its own judgments. Wilford v. Sigmund Eisner Co. , 13 N.J. ...


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