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A Child

Decided: July 28, 1993.

IN THE MATTER OF THE ADOPTION OF A CHILD BY J.M.G.


Freedman

Freedman

FREEDMAN, P.J.S.C.,

Plaintiff, J.M.G., is seeking a Judgement allowing her to adopt the biological child of her lesbian partner, E.O. This is a case of first impression in the State of New Jersey.

The court appointed a guardian ad litem for the child, Professor Barbara Coles Bolella, Esq., a Professor at the Seton Hall University School of Law, Center for Social Justice. The court requested that the guardian investigate and report on the best interests of the child and, further, take a position as to whether New Jersey statutes or public policy would prohibit this proposed adoption. The court also ordered that the statutorily required report be prepared by an independent investigative organization, Children of the World, and a recommendation be made as to the best interests of the child. This report was completed and made available to the guardian ad litem. In addition, a hearing was held before this court and testimony was taken from both the biological mother and the plaintiff.

The reports prepared by both the guardian ad litem and Children of the World found and recommended quite emphatically that granting this petition for adoption is in the best interests of this child. (Barbara Coles Bolella, Seton Hall Family Law Clinic, Report of Guardian ad litem, December 17, 1992 [hereinafter, Bolella Report.]; Veronica Serio, Report of the Investigation of Children of the World, October 26, 1992 [hereinafter, Children of the World Report.]) These reports, and the testimony taken in court, revealed information which the court finds by clear and convincing evidence constitutes the facts of this case.

The plaintiff and E.O., the biological mother, have been in a committed relationship for approximately 10 years. Plaintiff is employed part-time by a cable T.V. network and is the primary caretaker of the child. E.O. is an executive vice-president for a large communications company. They jointly own a home and other properties for investment purposes. They have a low six-figure combined income and the extended families of both women are supportive and involved in the life of the child.

Early in their relationship, J.M.G. and E.O. planned to have a child. They agreed that E.O. would give birth and that they would both raise the child as co-equal parents with mutual responsibilities as care-givers. In 1988, E.O. was artificially inseminated, under the supervision of her physician, through an anonymous donor. The child was born on October 3, 1989, and has lived continuously with both J.M.G. and E.O. since her birth.

The report prepared by Veronica Serio, M.A., Executive Director of Children of the World, concluded that the "adjustment of the child and plaintiff to each other is that of mother and child." Children of the World Report., sec. VI Similarly, the guardian ad litem stated, in part, "it is also quite clear that [the child] is definitively attached to the plaintiff . . . [she] moves back and forth between her two mothers with relative ease." Bolella Report. at 2. The plaintiff is clearly both physically and financially capable of supporting and nurturing the child. The child was described as "ebullient and good natured," Ibid., and as an "attractive, bright, lively, talkative child" Children of the World Report. at 1).

This court has determined from its own evaluation, in conjunction with these independent reports, that granting this adoption is in the best interests of this child.

As in the recent New York opinion, In re Adoption of a Child Whose First Name is Evan, 153 Misc. 2d 844, 583 N.Y.S 2d 997 (Sur. 1992), the court is convinced that this adoption will cause no change to the child's daily life but will provide critical legal rights and protections for her safety as well as her physical and emotional well-being. This adoption will provide additional economic security. Both the right to support, as per N.J.S.A. 9:3-50(b), and the right to inherit by intestacy from plaintiff and her family will be assured (N.J.S.A. 3B:5-9; 3-50(b)). The child will also be eligible for health insurance as a dependent, and for social security benefits in the event of plaintiff's disability or death. 42 U.S.C.A. § 402(d). This adoption will also protect the continuity of the child's relationship with plaintiff if either some accident or injury befalls the biological parent (E.O.), or if J.M.G. and E.O. separate.

It is well recognized in New Jersey law that "there can be a psychological parent-child relationship between a child and someone other than the child's biological parent." Hoy v. Willis, 165 N.J. Super. 265, 398 A.2d 109 (App. Div. 1978). The courts have recognized the need to protect the child from the emotional trauma which may be caused by terminating such psychological relationships.*fn1 Particularly in this matter, where the plaintiff is the primary caretaker, the court must consider the psychological importance of this relationship to the child.

The importance of the emotional benefit of formal recognition of the relationship between J.M.G. and the child must not be underestimated. Some courts have allowed the stereotypes and public disapproval from some quarters (which they feel may exist and may negatively impact on the child) to affect their decisions in these matters. "Courts sometimes allow the risk of harassment and stigmatization to be decisive without any evidence proving that harassment has occurred or is likely to occur. Courts should not assume that harassment will occur without supporting evidence. Moreover, they should recognize that community disapproval will not necessarily adversely affect children." Sexual Orientation and the Law 128 (Harvard Law Review eds., 1990). Indeed, if there is ever any harassment or community disapproval, this court should have no role in supporting or tacitly approving such behavior. The court's recognition of this family unit through the adoption can serve as a step in the path towards the respect which strong, loving families of all varieties deserve.

The guardian ad litem concluded, and this court agrees, that there exists no legal barrier to prevent this adoption from proceeding.

I am convinced that E.O. has made a knowing and voluntary consent to this adoption, satisfying N.J.S.A. 9:3-43(a). Since the identity of the father cannot be determined, notice is unnecessary. In fact, N.J.S.A. 9:17-44(b) provides that sperm donors have no legal "rights or duties stemming from the conception of a ...


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