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In 2013, with the proverbial stroke of a pen, New Jersey trial judge Mary Jacobson extended the right to marry in New Jersey to same-sex couples. The governor dropped his appeal of that decision after the Supreme Court of New Jersey denied his request for an injunction. Marriage equality became the law of the state through the act of a single trial judge.

Judge Jacobson’s decision reflects a long history of the New Jersey judiciary advancing the law to protect families of all configurations. The state court system promotes diversity and inclusion as major goals. Judges and court personnel receive cultural competency training and ongoing legal education.

This training and heightened sensitivity produces results. New Jersey judges, through a series of decisions, have recognized the evolution of our society and respected new ways to create and protect families. Here are some other examples of judges using the law to recognize the reality of modern families:

• In 2000, Justice Virginia Long, writing for the Supreme Court decision in C. v. M.J.B., 163 N.J. 200 (2000), found that, under certain circumstances, a person without biological connection to a minor can become a “psychological” parent to that minor with continuing parenting rights.

• Long before the recent passage of the New Jersey Gestational Carrier Agreement Act, Judge Ellen Koblitz devised a means to allow intended parents in a gestational surrogacy to obtain a pre-birth order to guarantee their parentage. A.H.W. v. G.H.B., 339 N.J. Super. 495, 505 (Ch. Div. 2000). That decision was later codified into a court rule. 5:14-4.

• The Appellate Division, in 1995, in In re Adoption of Two Children by H.N.R., 285 J. Super. 1 (App. Div. 1995), held that the adoption statutes in New Jersey allowed a child to have two parents of the same gender.

• In 2018, the Appellate Division held that there needed to be a redefinition of “familial relationship” for a Portee (bystander) claim for negligent infliction of emotional distress. Moreland v. Parks, ___ N.J. Super. ___ (App. Div. 2018). The court found that the original decision needed to be reinterpreted to include the LGBTQ community and other forms of relationship recognition which have evolved since 1980.

In appreciation of this proud history, I want to offer three other areas where examination may be warranted.

Legal Name Change: Publication Requirement

In New Jersey, in order to change one’s legal name, one must publish a legal advertisement twice—once before the hearing and then again afterward. Transgender individuals, both minors and adults, use the name change process to align their names with their gender identity and expression. The legal publication requirement causes them anxiety and stress; they fear embarrassment, ridicule, and various forms of discrimination.

What is gained by the publication requirement? Wouldn’t one or even none be sufficient? Does it still serve a function that outweighs the possible negative ramifications for members of the transgender community?

Although not completely on point, the decision in In the Matter of the Application of E.F.G. to Assume a New Name, 398 N.J. Super. 539 (App. Div. 2008), is helpful in framing the issues. There, the court was asked to waive publication and seal the public record on the name change application of a victim of domestic abuse. The judges balanced the need for public access of documents and materials filed in civil litigation against the factors counseling against access.

The legal advertisement requirement seems antiquated, left over from days when people read newspapers. In every name change, the applicant is required to notify the county prosecutor and the Division of Criminal Justice. Yet, these legal ads may live an eternal life on the internet, potentially causing stigmatization many years later. Balancing the need for the advertisement against the potential harm to transgender name change applicants, the legal advertising seems unnecessary.

Confirmatory Adoption Is Not Stepparent Adoption

When a married same-sex female couple has a child by using artificial insemination of donor sperm under medical supervision, the non-biological parent is a parent on two bases under New Jersey law. First, the artificial insemination statute, N.J.S.A. 9:17-44, provides that, where the statutory requirements are met, the non-biological parent is the legal parent of the child born as a result of the process. Secondly, the non-biological mother is a parent by virtue of the marital presumption. N.J.S.A. 9:17-43.

The New Jersey birth certificate lists both women as the parents of their child. For most parents, that birth certificate would be sufficient. Most parents would not petition a court for a confirmation of their parentage through an adoption.

Same-sex couples are not like most parents. Despite marriage equality and a strong law against discrimination in New Jersey, same-sex married parents need an extra level of protection.

Same-sex couples who are parents are aware of the discrimination in parts of the United States against couples similarly situated. For example, in the last two years, parents in legally-recognized same-sex relationships were forced to petition the United States Supreme Court for confirmation of their parental rights.

In E.L. v. V.L., 577 U.S. ___ (2016), the United States Supreme Court unanimously overturned the judgment of the Supreme Court of Alabama, which had ruled that one state did not have to recognize an adoption judgment from a sister state.

In Pavan v. Smith, 582 U.S. ___ (2017), the United States Supreme Court reviewed a decision of the Arkansas Supreme Court. Two married same-sex couples in Arkansas conceived children through anonymous sperm donation, but, unlike different-sex married couples, they were denied the right to have their spouse listed on the birth certificate. The Arkansas Supreme Court ruled that the state did not have to extend to same-sex couples the same rights as accorded to an opposite-sex couple. The court reversed that decision by a 6-3 vote.

As a result of this possible discrimination, same-sex couples throughout the United States often petition a court for a “confirmatory” adoption order, which provides portability and the freedom to travel. That “confirmatory” adoption judgment is subject to full faith and credit under the United States Constitution wherever this family travels or moves within the United States.

However, when this married couple applies for a confirmation of their parental rights, New Jersey courts categorize their application as a stepparent adoption. They are not stepparent adoptions; both parents are already legally parents. That designation is hurtful and makes it seem that a legal parent is being forced to adopt her own child. Courts need to re-examine and re-categorize these adoptions.

As a result of the stepparent categorization, the “stepparent” is required to obtain a criminal background check and child abuse clearance. All other adults in the house are also required to obtain similar clearances. These clearances are unnecessary and obtrusive.

Recognition of Multi-Parent Families

The recognition of psychological parentage as cited above was a significant step in recognizing the contours of modern families. But that decision is nearly 20 years old and needs re-evaluation.

It’s time to recognize the reality of many children’s lives. It’s time to give adults functioning as parents the title of parent and not some ambiguous middle ground.

Many jurisdictions already recognize that a child may have more than two parents. California, Delaware and Maine have statutes that recognize that possibility. Case law in New Jersey, New York and other states have found multiple parents in individual cases.

Why is it important? Most importantly, a child has a right to have her/his family recognized.

And then there are the practicalities. If a child inherits from a parent, there is no New Jersey inheritance tax. If that same child inherits from a “psychological” parent, the inheritance is taxed at 15 percent.

If a “psychological” parent is disabled, the child is not entitled to Social Security or other possible employment benefits as the child would if full parentage were recognized.

A fair judicial examination of these issues—the publication requirement for name changes, the misclassification of confirmatory adoptions as stepparent adoptions, and recognition of multi-parent families—would result in judicial practices that are in better harmony with reality of the lives of New Jersey families.

 

Bill Singer, a partner in Singer & Fedun, in Belle Mead, concentrates his practice on the creation and protection of families of all configurations.