Thank you everyone for your input.
I do want to make clear that I was aware of the legal precedent which would forbid a formal "termination of parental rights" in this context, which is why the Consent Order is worded in a way which attempts to get around the issue and does not make it a permanent termination, more so a present consent to sole custody and no parenting time and a pledge by the Plaintiff not to seek child support.
While I can see the purpose behind the restriction on termination of parental rights, this case is unique in that there are allegations of sexual assault on the child by the father, although not proven (the child is 4 and is the only "witness"), which makes me think that there is a strong argument to go against public policy based upon the best interests of the child.
What I find interesting is that we allow single individuals to adopt. We allow unmarried couples to adopt. We allow unmarried non-cohabitants (whether good friends of the parents who name them guardians in a will, etc.) to adopt. It seems odd that we would not allow a single mother to "adopt" away the rights of the father. Would it be permissible to have the grandmother "adopt" the father's rights? Is that necessarily different than a step-father adopting the child, beyond it not being a "traditional family"? This is all a philosophical and ideological discussion, but it is interesting nonetheless, especially as our society changes.
Thank you again for your comments and help.
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David Cardamone Esq.
Little Silver NJ
(732)741-6769
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Original Message:
Sent: 09-18-2014 10:19
From: David Perry Davis
Subject: Name Change
I agree with the other responses on the termination of parental rights issue. Can't do it voluntarily any more than you could voluntarily sign yourself into prison for 3-5 years(etc); parenting is a fundamental right. This comes up on Avvo on a regular basis, and I have a canned response I post there:
Outside of the context of an adoption or DYFS action, you can't voluntarily terminate parental rights / responsibilities in NJ. He can't be held to his offer to do so.
There's an often-cited trial level case on the issue - RH v. MK - http://scholar.google.com/scholar_case?case=12666217077188208034 . The court has been clear that "Parental rights are not a sometime thing. The termination of those rights entails a permanent sundering of parental ties.... The termination of parental rights is governed strictly by statute. ... [T]he Supreme Court held that the termination of parental rights by consent of the parties is valid only when effected through voluntary surrender of a child to an approved agency or to the New Jersey Division of Youth and Family Services (DYFS) accompanied by a formal document acknowledging termination of parental rights, or through a private placement adoption."
I have seen matters where the parties do this "de facto" - the CP agrees to CS of $1 / week (citing and departing from the guidelines) and "all parenting time will be by consent of the parties" (and none is agreed), but the door is always open on both sides to go back. I don't know whether your ex would agree to this or not.
On the name change -- if the child is under a certain age, you can amend the birth certificate by filling out a form. Outside of that, I've had judges sign consent orders to change a child's name by consent, but, again, that was a younger child. I'd try both methods and then resort to the more expensive "formal process" if that doesn't work.
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- Dave
David Perry Davis, Esq.
112 West Franklin Avenue
Pennington, NJ 08534
Voice: 609-737-2222
Fax: 609-737-3222
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