Article by Daniel A. Levy, Esq.

Normally, I write about various topics from my practice with the goal of providing some legal information to the public. But today, I want to take this opportunity to share some lessons that I learned during this very unique case that recently went to trial.

The case was about a contested adoption. Normally when people adopt, they go through an adoption agency of some kind or through child services. And in other cases, parents who may not be ready or able to raise a child would want to voluntarily arrange for a relative (grandparent, aunt, etc.) to adopt and raise the child. But in either case, all parties involved are on board and working together. There may be a period where reports are generated and provided to the court, and a judge may take some brief testimony, but it is by no means an adversarial process.

However, the contested adoption is an entirely different story. This is an extremely rare type of case in New Jersey. In fact, it is so rare that a member of the court staff told me that the last one that had occurred in the county (over 500,000 people live in this county) was over 10 years ago! Neither of the attorneys involved had worked on such a case. Even the very experienced judge had never worked on such a case. One of the first things that I learned in this case was that there is an opportunity for even experienced counsel and judges to learn new things about discrete areas of law.

To give you some very brief background, this was a situation where grandparents wanted to adopt the child that they had been raising for a number of years. The father (their son) was fine with the adoption. The mother (my client) was not. The basic process that takes place in a contested adoption is that the adoptive parents and natural parents are evaluated and a report is generated and provided to the court. The court also appoints a guardian ad litem who is essentially an independent attorney that represents the interests of the child and acts as the child’s advocate. That person also provides a report to the court. The court will eventually have a trial. When considering a termination of parental rights in an adoption proceeding, the Family Part generally should ask whether the objecting parent has “substantially failed to perform the regular and expected parental functions of care and support of the child” within the relevant time.   If the court finds that the objecting parent has failed in performing those functions, it must determine whether the parent was able to fulfill them.   When assessing the objecting parent’s inability, the court should consider whether the custodial parent has contributed to that inability by blocking the objecting parent’s access to the child. If the court finds that the objecting parent has failed in performing his or her parental functions, it “shall” enter the judgment of adoption over the parent’s objection.   If, however, the  court finds that the objecting parent has not failed in performing his or her parental functions, the court should determine what resolution is in the best interest of the child.   Alternatively, if the court finds that the relevant time period does not apply, the court should then turn to the best interest analysis.  When answering these questions, the court should consider whether the objecting parent has affirmatively assumed the duties of a parent as defined in N.J.S.A. 9:3-46(a).   The court, however, also may consider other factors in determining the child’s best interest.

With that background in mind, one of the things that I was reminded of as a practitioner is that in many areas of family law it is not always a question of bare advocacy and legal arguments. In cases like this, an attorney could easily shift roles from that of advocate to that of counselor. Guiding the client through this very difficult situation was paramount to the representation. Much of the time that I spent on the case concerned an agreeable compromise rather than “winning.”

But a compromise was not to be had and the case did go to trial. Another interesting thing that I learned as a practitioner is that you need to do your best with what you have to work with, because you never know whether those efforts will ultimately carry the day. For example, in this case the evidence in favor of the adoptive parents was strong and the client understood this. In my mind, there was almost no chance of winning and I was not thrilled to argue a case that had no chance. However, I learned that we just needed to be creative with what your arguments are and how to present them. Counsel for the adoptive parents explained to the court that the law favored the grandparents, that the grandparents have been raising the child and doing a great job at it, and that the child didn’t even want to see the mother. He also pointed out that it would be ridiculous to uproot the child at this time and send him back to his mother’s house.

It would have been folly for me to argue that the grandparents were wrong. So rather than ask that court to reject my adversaries arguments, I owned the facts and presented an alternative result. I explained that the mother was precluded from having a meaningful relationship with her child due to things that were beyond her control (including actions taken by the grandparents) and that the court could reject the adoption, leave the child in the grandparents’ care, and give the mother the opportunity to repair the relationship with her son – perhaps attending therapy together – so that all of the concerns are met. When phrased that way, a case that looked that a sure loser now turned into a winnable case.

I don’t yet know what the judge will say as he is considering the evidence and will author a formal opinion at a later date. But I am glad that I had the opportunity to learn something new and present the case in a creative way that gave us a fighting chance at success.