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In re Adoption of A Child

Decided: March 1, 1978.

IN THE MATTER OF THE ADOPTION OF A CHILD BY DANIEL F. D. MCKINLEY AND PATRICIA E. MCKINLEY


Imbriani, J.c.c.

Imbriani

New Jersey parents, now in the midst of divorce proceedings, previously transferred physical custody of their five-day-old child to plaintiffs, adopting parents who have at all relevant times been residents of New York.

May this court entertain a complaint for adoption by the adopting parents since they, as well as the child, reside in New York? This court answers affirmatively.

Does this court have jurisdiction over the subject matter, i.e. , an adoption involving residents of another state? Unlike jurisdiction over the person, jurisdiction over a subject matter cannot be conferred by consent.

Jurisdiction over the subject matter is the power of a court to hear and determine cases of the class to which the proceeding in question belongs. It rests solely upon the court's having been granted such power by the Constitution or by valid legislation, and cannot be vested by agreement of the parties. [ State v. Osborn , 32 N.J. 117, 122 (1960)]

Lacking jurisdiction, any judgment rendered is an absolute nullity.

Adoptions were unknown at common law and emanate from statutory authority. In re Flasch , 51 N.J. Super. 1, 15 (App. Div. 1958). So it is to the statute we must first turn.

Most states provide by statute that suits for adoption may be entertained only if the adopting parents, the child, or both, reside within the state. "Adoption: Residence-Domicile," 33 A.L.R. 3d 176, 191-197. Often a minimum period of residence is required. Unlike those of most states, the New Jersey statute is silent as to residence or domicile, N.J.S.A. 9:3-17 et seq. , albeit it does by inference anticipate that some parties, including presumably the adopting parents, may reside without New Jersey by directing that the "[n]otice of the preliminary hearing shall be served personally within or without the State upon each person having custody of the child." N.J.S.A. 9:3-23A(4). It speaks of concern for protecting the rights of the natural and adopting parents, as well as the child. N.J.S.A. 9:3-17.

Absent a statutory "requirement of residence of the person who petitions for the adoption, or of the residence of the child within the state, it is generally held that such terms will not be implied, and the mere presence of the parties [is] sufficient basis for jurisdiction." 2 Am. Jur. 2d, Adoption , ยง 50.

While our statute is silent as to the necessity of residence or domicile, the rules of court are not. R. 4:94-1(a) requires that, but for two exceptions (one of which is not relevant and the other is discussed infra), an action for adoption "shall be brought or the venue laid in the county where the plaintiff is domiciled." Both the residence and domicile of plaintiffs clearly lie in New York. See Kurilla v. Roth , 132 N.J.L. 213 (Sup. Ct. 1944), for a discussion of these terms.

The rules of court do not mandate a dismissal of this action. They are addressed to "venue," which simply means where to place an ...


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