Requirements for Adult Adoption
Fall & Romanowski, New Jersey Family Law, Relationships Involving Children (GANN):
In comparison to a child adoption, the adoption of an adult "is ordinarily quite simple and almost in the nature of a civil contract," In re Nicol, 152 N.J. Super. 308, 219 (App. Div. 1977) (quoting In re Estate of Griswold, 140 N.J. Super. 35, 52 (Cty. Ct. 1976)). See also In re Adoption of Adult by C.K., 314 N.J. Super. 605, 609 (Ch. Div. 1998) (noting that, compared to the child adoption statute, New Jersey's adult adoption statute "is remarkably brief and succinct").
Pursuant to N.J.S. 2A:22-1 and N.J.S. 2A:22-2, four basic requirements must be met before an adult adoption may be granted:
(1) The adoption must be "to the advantage and benefit" of the adult to be adopted;
(2) The adoptive parents must be of "good moral character" and "reputable standing" in their community;
(3) The adoptive parents must be at least ten years older than the person to be adopted; and
(4) The adopted adult must request the adoption and, if desired, a change of name in an acknowledged writing.
See also In re P.B. for Adoption of L.C., 392 N.J. Super. 190, 193-194 (Law Div. 2006) (reiterating the statutory requirements of adoption).
If the court finds that the best interests of the person to be adopted would be promoted by the adoption, the last two requirements may be waived, as discussed below. N.J.S. 2A:22-2; In re Estate of Fenton, 386 N.J. Super. 404, 415 (App. Div.), certif. den. 188 N.J. 577 (2006).
7:2-2. Benefit to Adult.
Broadly speaking, the standard for adopting an adult is not as stringent as that for a child adoption. Whereas the primary consideration for a child adoption is the child's best interest, see 6:3-1, an adult adoption generally hinges on whether the adoption is "to the advantage and benefit of the person to be adopted." N.J.S. 2A:22-1. Nevertheless, a best interests analysis may be appropriate where adoption is sought with respect to an incapacitated adult. See N.J.S. 2A:22-2 (requiring a best interest analysis when a waiver of the written request or age difference requirement is sought).
As to the type of advantage or benefit that must inure to the person to be adopted, reported case law suggests that both personal and financial benefits are acceptable. For example, in In re Estate of Fenton, 386 N.J. Super. 404, 422 (App. Div.), certif. den. 188 N.J. 577 (2006), the court upheld an adoption that resulted in a personal benefit to both the plaintiff, who had no children and indicated that she wanted "a nice, close family," and the adopted adults, who had no living parents and wanted a parent-child relationship with the plaintiff. The adoption also resulted in a financial benefit to the adopted adults, who gained inheritance rights in a family trust. Similarly, in In re Nicol, 152 N.J. Super. 308, 312 (App. Div. 1977), the court implied that an adoption would be permissible even though the most likely motive was to assure that the adopted adult share in the distribution of a testamentary trust.
However, several courts have refused to give full effect to an adult adoption that was sought purely for financial purposes. In In re Estate of Comly, 90 N.J. Super. 498, 503 (Cty. Ct. 1966), the adoptive parent admitted that he adopted an adult solely to enable her to remain in her home, in which he possessed a life interest with a remainder to his children. After adoption, the adult demanded a portion of a trust fund established separately for the benefit of the adoptive parent and his "children," as well as other parties. The court refused to allow the adopted adult to take under the trust, explaining that although "it is the policy of the Legislature to place adopted children on a level with natural children, such a policy should not be used to permit the adoption of adults for the sole purpose of giving them an interest in property."
Likewise, in In re Adoption of P., 193 N.J. Super. 33, 37-38 (Law Div. 1983), a university professor wished to adopt his cousin, who was ten years younger and a university student, so that the student could receive free tuition by virtue of being a son of a university employee. The court acknowledged that "[s]trictly and narrowly construed, this is a benefit to the person to be adopted and the statutory requirements appear to be fulfilled." Upon discovery that the adoptee planned to return to his natural family in Greece after finishing his education, however, the court denied the adoption, concluding that it was "transitory, without bona fides and with no apparent permanent purpose" other than the "fraudulent aim" of having a third party (in this case, the university) pay for the adoptee's education. Similarly, in In re P.B. for Adoption of L.C., 392 N.J. Super. 190, 200 (Law Div. 2006), the court refused to allow a couple to adopt an adult who was actually older than one of the prospective adoptive parents, even though the adult-adoptee would benefit by "finally being considered a legal family member," because there was "no evidence of a parent-child relationship between the parties." See also In re Adoption of P., 193 N.J. Super. 33, 36-37 (Law Div. 1983) (refusing to grant an adult adoption on the ground that the adoptee might later be embarrassed).
The inference to be drawn from the cases denying adult adoptions is that, notwithstanding the statutory language in the adult adoption statute, a trial court generally may refuse to grant an adult adoption determined to be against the public interest. As an example, in In re Adoption of A., 118 N.J. Super. 180, 182 (Cty. Ct. 1972), the court would not allow a religious couple to adopt a 29-year old man in prison for murder as part of a rehabilitation program in part because the "adopted adult may cheat or otherwise take advantage of the adopting adults." See also In re Estate of Fenton, 386 N.J. Super. at 414 (stating that the adult adoption statute was enacted to permit adults "to enter into a mutually beneficial adoptive relationship") (emphasis added); In re Adoption of P., 193 N.J. Super. at 36-37 (refusing to ignore "the public interest" or "the effect that the adoption would have on third parties").
7:2-3. Qualifications of Adoptive Parents.
The adult adoption statute permits adoption by all persons "of full age" (that is, age 18, the age at which one is qualified to enter into a contract pursuant to N.J.S. 9:17B-3), provided that the adoptive parents are of "good moral character and of reputable standing in their community." N.J.S. 2A:22-1. Adoptive parents who are married must adopt the adult jointly with their spouse or obtain spousal consent prior to the adoption.
The statute makes no reference to the proofs required to establish that the adoptive parents are of good moral character or reputable standing in their community, although witness testimony is permitted. Compare In re Adoption of A., 118 N.J. Super. 180, 181-182 (Cty. Ct. 1972) (noting that two people testified as to plaintiffs' good character) with In re Estate of Fenton, 386 N.J. Super. 404, 415 (App. Div.), certif. den. 188 N.J. 577 (2006) (noting that there is "nothing in the record to suggest" that the adoptive parent was not of good moral character or reputable standing). See also In re Adoption of M., 317 N.J. Super. 531, 546 (Ch. Div. 1998) (indicating the relative ease of establishing the moral character and reputable standing of a new adoptive parent).
As to what constitutes "good moral character," there is no set standard. Compare Adoption of Adult by G.V.C., 243 N.J. Super. 651 (Ch. Div. 1990) (permitting an adult adoption by a biological father who had an affair with the adopted adult's mother) with In re Adoption of A., 118 N.J. Super. at 182-183 (rejecting adoption where, despite the excellent moral character of the adoptive parents, the adult to be adopted was incarcerated for murder).
7:2-4. Required Age Difference; Request by Adoptee.
As with child adoptions, see N.J.S. 9:3-43(b), a prospective adoptive parent of an adult must be at least ten years older than the adult to be adopted. N.J.S. 2A:22-2. The requisite age-difference has been construed as the Legislature's "method of ensuring that at least a semblance of a parent-child relationship exist[s] between the adult parties." See In re P.B. for Adoption of L.C., 392 N.J. Super. 190, 195 (Law Div. 2006) (denying an adoption by parents who were close in age to adult to be adopted). Moreover, the adult-adoptee must request the adoption, along with a name change, if desired, in an acknowledged writing attached to the complaint. R. 5:11.
Pursuant to N.J.S. 2A:22-2, however, the court may waive these requirements upon concluding that the adoption would promote the best interests of the party to be adopted. In re Adoption of Adult by C.K., 314 N.J. Super. 605, 609 (Ch. Div. 1998). Presumably, the waiver and best interests requirement was intended to protect persons who are for some reason unable to protect themselves. It is unlikely that it was intended to avoid the inherent requirement that a parent-type relationship exist between the adopted parent and the adoptee. See In re P.B. for Adoption of L.C., 392 N.J. Super. at 200 (refusing to waive age-difference requirement absent parent-child relationship or "compelling evidence" as to why the adoption would be in the best interests of the adult to be adopted).
7:2-5. Notice.
Unlike the child adoption statute, see 6:3-3, the adult adoption statute is silent regarding notice. See In re Adoption of Adult by C.K., 314 N.J. Super. 605, 609 (Ch. Div. 1998) (noting that the adult adoption statute "omits any designation of any parties who are entitled to notice ... any mechanism for determining whether the objection of a parent can be overcome, and ... any procedure for investigations and waiting periods and similar safeguards all of which are clearly delineated in the statutes governing infant adoption"). Thus, in an adult adoption, there is no statutory requirement that notice be given to any person or entity, including the parents of the adult to be adopted or any other person whose interests may be affected by the adoption.
However, in In re Adoption of an Adult by V.A., 294 N.J. Super. 400, 402 (Ch. Div. 1996), the court held that notice to the natural parent was required by the Due Process Clause of the Federal Constitution and Article 1, Para. 1 of the New Jersey Constitution). In that case, a stepfather sought to adopt his wife's adult child without notice to the natural father. Although the court acknowledged that "[n]otice is not a specifically stated condition of the Adult Adoption Statute in New Jersey," it nevertheless refused to grant the adoption absent notice to the natural father, reasoning that "[i]t is fundamentally unfair for a natural parent to live under the impression that a parent-child relationship exists with an adult child when in fact that relationship has been ended by a court proceeding about which the natural parent has been given no notice."
In In re Adoption of Adult by C.K., 314 N.J. Super. at 610-611, Justice Hoens (then a Chancery Division judge) rejected the holding in V.A. and concluded that parents were not entitled to notice of an impending adult adoption. There, an adult who was adopted as an infant sought a second adoption as an adult by a different family, with no notice to her existing adoptive family. The court concluded that the adoption could proceed without notice to the adult's existing parents, explaining that "[t]here is no suggestion in case law or in statute that [certain] rights, fundamental and well safeguarded as between parent and child, survive as fundamental rights of a parent in relation to a child who reaches adulthood." As explained by Justice Hoens:
"There are ... good and sound reasons why the parent has a right to notice in the context of infant adoption. But those rights and those interests do not exist as between a parent and an adult offspring. To begin with, an individual who reaches eighteen years of age is not a child, but an adult, who is automatically imbued with a wide variety of rights and choices with which their parents generally have no right to interfere. ... The adult adoption statute implicitly recognizes these fundamental rights of the adult seeking to be adopted. Its different requirements and its different focus as compared with the focus and requirements embodied in the statutes governing the adoption of children recognizes the fact that with adulthood come rights and responsibilities of the adult not enjoyed by any child. And with those rights comes the extinction, in reality, of the parent's right to object."
The court also rejected the argument that notice was required due to the continuance of the adopted adult's rights of intestate succession from the former parent under N.J.S. 2A:22-3(a), reasoning in part:
"...if the only property right to be asserted by the parent is the right to ensure that their assets be inherited by children who have not been adopted by others, then the only potential right they would have would be a right, after the fact, to notice that the adoption had occurred. It would not entitle them to notice of an impending adoption nor to an opportunity to be heard."
Likewise, third parties whose property interests may be affected by an adult adoption (for example, beneficiaries of a trust) are not entitled to notice of the adoption proceeding. See Marshall v. Lauriault, 372 F.3d 175, 187 (3d Cir. 2004) (noting that there is "no statutory requirement for notice to third parties" in the New Jersey adult adoption statute and holding that third parties have "no due process right to notice" of an adult adoption). Nevertheless, at least one court has considered the effect of an adult adoption on third parties when determining whether the adoption should be granted. See, e.g., In re Adoption of P., 193 N.J. Super. 33 (Law Div. 1983) (considering the impact of an adoption on a university required to waive the tuition of an adult after adoption by a professor).
Hoping this helps. Happy Holidays!
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Curtis Romanowski Esq.
Senior Attorney - Proprietor
Metuchen NJ
(732)603-8585
Original Message:
Sent: 12-22-2015 13:56
From: Elaine Nissen
Subject: Adoption over the age of 18
I've done one in Bergen County. The advantage of the "child" being over age 18 is that the legal parent going off of the line does not need to be contacted or to give consent.
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ELAINE H. NISSEN, ESQ.
Attorney, Mediator and Collaborative Law Practitioner
NY: 41 Madison Avenue, Suite 4000, New York, NY 10010
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