The adoption of a child can be a beautiful, rewarding process for birth parents, adoptive parents, and children.  However, when cases become contested, they can make adoption a nightmare. 

For most couples, the choice to adopt is made because they are unable to have children themselves, and this is their best chance at growing their family. Parents on both ends of the adoption experience a myriad of emotions.  But what happens if, after the adoption is complete, a New Jersey birth mother changes her mind? 

A birth mother’s surrender of a newborn to an adoption Agency is the safest way for an adopting couple to take custody.  After 3 days, with little exception, the birth mother’s rights are irrevocably terminated. 

According to N.J.A.C. 3A:50-5.4(a), adoption Agencies are required to:

• Provide at least three face-to-face counseling sessions by qualified social work staff during which they must go over a variety of key subjects with the birth parents.
• Have the birth parents sign a statement that they attended the sessions and understood the contents or a statement that the birth parents refused the counseling.
• Have the birth parents sign a statement that the Agency went over the provisions of N.J.S.A. 26:8-40.33 and 40.34, which

i. Allow each adoptee and other approved individuals access to original birth certificates;

ii. Allow each birth parent to submit a document of contact preference to the State Registrar; and

iii. Require each birth parent who submits a document of contact preference to submit a family history form.

• Advise the birth parents how to obtain additional information from the Department of Health.

Agencies must follow these regulations during the adoption process to ensure the birth mother’s surrender is enforceable once made.  The surrender may be legally reversed only if a reviewing court sets aside the surrender due to proof of the Agency’s fraud, duress, or misrepresentation to the birth mother.  Therefore, so long as the Agency and all employees comply with NJ laws and regulations, a birth mother is unable to change her mind days, months, or years later seeking to nullify her surrender. 

In 2017, a NJ birth mother brought an action to nullify the surrender of her newborn and get her child back from the adoptive parents who lived out-of-state.  At the time of the trial court’s decision, the baby was seven months old.  During the trial, the birth mother made it clear that she regretted her decision, while also stating that she did understand the full effect of the surrender she had signed.  The birth mother was a teenager when she had gotten pregnant, and felt that her own mother would not support her if she learned of the pregnancy.  She decided to work with an out-of-state adoption Agency and the adoptive parents adopted the child through that Agency.  A couple of months later, however, the birth mother revealed the adoption to her family and was surprised that they fully supported her choice to keep the child, which led to her attempt to nullify her surrender and get the child back. 

During the birth mother’s pregnancy, the adoption Agency complied with all of the paperwork necessary to facilitate the adoption, and assigned an adoption counselor to the birth mother.  For the counseling sessions, they met at a Starbucks, which according to both parties was what the other preferred.  The testimony of the birth mother and the counselor conflicted, and ultimately the court found the birth mother to be more credible.  With regard to these counseling sessions, the trial court ruled that the location was not professional, and that the counselor failed to mention more than one alternative to adoption and offered no information about assistance that the state could provide.  The court set aside the surrender stating that the adoption Agency failed to counsel the birth mother in compliance with the regulations, which constituted misrepresentation, a statutory ground for reversal.    

The adoptive parents appealed the trial court’s decision immediately, and the appellate court accelerated the trial due to the baby’s age and the passage of time.   The Adoption Act of 1977 opens with the mandate that it “be liberally construed to the end that the best interests of the child be promoted and that the safety of the children be of paramount concern.”  According to the Appellate Division opinion, the trial court did not consider the best interests of the child.   Rather, the court found that there can be severe psychological damage done to a child who has had their attachment disrupted.  This can occur with an infant as young as seven months, the age of the child when the trial court nullified the birth mother’s surrender. 

With the child’s best interests in mind, the Appellate Division further concluded that not every violation of regulations constitutes misrepresentation sufficient to void the surrender.  For example, the court deemed that the counselor does not misinform a birth mother about the availability of assistance programs considering that the birth mother may not even qualify for them.  During the trial, the birth mother did not establish eligibility for these programs, making the claim of misinformation on the counselor’s part invalid.  The Appellate court further explained that the birth mother presented an informed understanding that her surrender was permanent, and that though she may have made a different choice if she had revealed the pregnancy to her family earlier, it is not the responsibility of the counselor to repeatedly suggest the birth mother disclose her pregnancy.  The Appellate court reversed the trial court’s decision, and the adoption was validated.

A contested adoption can be long and costly.  It can take a large emotional toll.  For families who are able to add a child to their family through this process, it is an amazing path that is well worth travelling.  For birth mothers seeking to find a loving adoptive home for their child, locating the perfect family can be a difficult yet incredibly rewarding journey.  It is important for all parties involved in matters of adoption to fully understand the entire process and their legal rights throughout. 

If you or someone you know needs information, advice, coaching, counseling, and/or legal advocacy in an adoption matter, get the help you need from a source you can trust.  At Hanan M. Isaacs, P.C., our lawyers are well trained in family law practice, including adoption. Call us at 609-683-7400 or contact us online.  We will schedule you for a reduced fee initial consultation.  We will listen to your facts, review the law, and help you develop the best course of action for your family and you.  Please call or write today.  You will be glad you did.