Absent a showing that the natural parent is unfit, or has abandoned the child, does the court have the right to award custody of a child to a stranger when it is in the child's best interests?
There does not seem to be any case in New Jersey squarely answering this question. Other states are divided. See 59 Am. Jur. 2d, Parent & Child , § 25 at 110.
The facts are as follows. S.D., a girl, was born out of wedlock. Shortly after her birth her mother married a man who is not the putative father. They and the two children of the marriage lived together for over seven years. Upon separation, the wife kept the three children for about 1 3/4 years and then gave them to the husband who has had them for over two years. S.D. is 12 years of age. The children of the marriage are ten and nine. The wife has had frequent visitation. The children are a family unit and have always lived together. S.D., in chambers, expressed a strong desire to remain with her "father." The mother is on welfare. She does not work, although there is no physical reason for not doing so -- she has in the past. The husband's living accommodations are superior, his work record good and the children are happy with him. All three wish to stay with him but the court does not give much weight to the desires of the two youngest. The husband is living with another woman, whom he says he intends to marry, and he has a child by her. She takes care of the family while he is at work. This custody issue arose in the divorce action.
Based on the evidence in the case, the court finds that it is clearly in the best interests of the children to remain with the husband. However, it cannot find that the mother is unfit or has abandoned the children.
Counsel for the wife contends that the court has no power to give S.D. to the husband and that the question at the beginning of this opinion must be answered in the negative. The court does not agree.
At the time of the separation there was an agreement giving custody of all three children to the mother. However, such an agreement cannot be the sole determinant on the issue of custody. Sheehan v. Sheehan , 38 N.J. Super. 120 (App. Div. 1955).
Custody and adoption must be clearly distinguished. In In re Adoption of Children by D , 61 N.J. 89 (1972), the Supreme Court recognized the irreversible effect of a judgment of adoption, permanently severing the bonds between
the adoptive child and the nonconsenting natural parent. Quoting from In re N , 96 N.J. Super. 415, 425 (App. Div. 1967), the court wrote:
The decision then outlined the two-step procedure to be followed. It must be found that the natural parent has "for-saken parental obligations" before the question of "best interest of the child" can be considered.
But, adoption is permanent. Custody may be temporary. Scanlon v. Scanlon , 29 N.J. Super. 317 ...