In New Jersey, a parent’s rights can be terminated either voluntarily or involuntarily. While voluntary termination of parental rights is not common, sometimes a parent will voluntarily give up custody of his or her child. If this happens, the parent will most likely consent to having his or her child adopted or will be involved in a State of New Jersey, Department of Children and Families (DCP formerly known as DYFS) action. If agreed to willingly by the parent and witnessed by a public notary, this type of termination of parental rights is binding and irreversible.
On the contrary, parental rights are typically involuntarily terminated. There are five distinct grounds for termination of parental rights pursuant to N.J.S.A. 30:4C-15. As a reminder, they are as follows:
(1) It appears that a court has entered a conviction against the parent or parents, guardian, or person having custody and control of any child because of abuse, abandonment, neglect of or cruelty to the child; or
(2) It appears that the best interests of any child under the care or custody of the division require that he be placed under guardianship; or
(3) It appears that a parent or guardian of a child has failed for a period of one year to remove the circumstances or conditions that led to the removal or placement of the child, although physically and financially able to do so, notwithstanding the division's reasonable efforts to assist the parent or guardian in remedying the conditions; or
(4) The parent has abandoned the child; or
(5 The parent of the child has been found by a criminal court of competent jurisdiction to have committed murder, aggravated manslaughter or manslaughter of another child of the parent; to have aided or abetted, attempted, conspired, or solicited to commit such murder, aggravated manslaughter or manslaughter of the child or another child of the parent; or to have committed, or attempted to commit, an assault that resulted, or could have resulted, in significant bodily injury to the child or another child of the parent; or the parent has committed a similarly serious act which resulted, or could have resulted, in the death or significant bodily injury to the child or another child of the parent.
As an experienced New Jersey divorce and family lawyer, I know that when dealing with involuntary termination of parental rights, the case on point is R.H. v. M.K., 254 N.J. Super. 480 (Ch. Div. 1991), holding that a parent cannot voluntarily terminate his or her parental rights in a context other than the adoption of a child. In the case, the parties, both practicing professional, were married on December 9, 1990. Yet, from the get-go their marriage was shaky. The defendant became pregnant and a daughter was born of their marriage on August 6, 1991. Days later, the plaintiff left the home. From that point, he had not spoken to the defendant, nor had he visited with his daughter. The parties’ daughter had been in the primary physical custody of the defendant since that time.
Upon the separation, the parties filed for divorce. After the negotiations were under way, the parties entered into a property settlement agreement and separation agreement on October 22, 1991. Notably, the agreement detailed termination of parental rights and obligations of the plaintiff. It stated that his parental rights were thereby terminated and that he would not be allowed visitation whatsoever with the child “no or at anytime in the future no matter what the circumstance.” Furthermore, the agreement held that the plaintiff willingly and voluntarily surrendered his parental rights and obligations to the child and understood that he was irrevocably surrendering his parental rights to the child forever.
The court addressed the issue presented; could a parent voluntarily surrender his or her parental rights in a context other than the adoption of a child? It first looked to the statute that governs parental rights in New Jersey. Quoting The Matter of Baby M, the court stated 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 DCP accompanied by a formal document acknowledging termination of parental rights, or through a private placement adoption.” Moreover, the court held that a contractual agreement to abandon one’s parental rights would not be enforced now, just as it had not been enforced in the past.
As articulated by the trial court in the R.H. v. M.K. case, a party cannot terminate his or her parental rights just because he or she feels like doing so. It is important to note that parental rights are traditionally preserved under New Jersey law unless enforcing them is not in a child’s best interest. For further questions on the termination of parental rights, please do not hesitate to contact my office today.