A recent decision handed down by the Appellate Division in an estate litigation matter serves as a reminder of the all-too-frequent intersection of family law and trusts and estates law. The fact that this case, In the Matter of the Estate of Douglas Castellano and the Parentage of Gregory Bock, is a published decision
I have previously posted several blog entries about custody and parental rights where DYFS (“Division of Youth & Family Services”), NJ’s child protective agency, has involvement. To read those posts click here, here, or here.
On September 29, 2010, the NJ Supreme Court issued an opinion addressing the standards to be applied to a sibling’s request for visitation after children are placed outside the natural family’s home and after they are adopted. The opinion of In the Matter of D.C. and D.C., Minors provides guidelines for those siblings who seek to continue a relationship with their adopted and/or placed siblings and addresses a very important issue for families across this state.
The facts of D.C. can be summed up as follows: Nellie, the biological sister of Hugo and twins sought custody and visitation of her siblings after DYFS removed the children from her mother’s care and placed them in separate homes. In 2005, Nellie, then age 23, resided in Va. Hugo was 14 years old at the time. In 2006, Hugo was placed with Nellie. In 2007, DYFS discussed visitation of the twins with Hugo and Nellie. In August 2007, Va.’s child placement agency (“RDSS”) approved placement of the twins with Nellie and Hugo but expressed concerns about Nellie’s ability to support the children. Based on that concern, visitation was recommended to ease the transition. Then, in late 2007, RDSS rescinded its recommendation for placement of the twins with Nellie and Hugo because of Hugo’s poor grades and Nellie’s job loss.
The biological mother’s parental rights were terminated in December 2007. In January 2008, DYFS approved Nellie as kinship legal guardian of Hugo, but not the twins. At the same time, Nellie was informed visitation with the twins would stop. In April 2008, Nellie filed an action seeking placement of the twins in her care or alternatively reestablishing the sibling visitation. DYFS opposed her application.
The Supreme Court of New Jersey’s recent decision in New Jersey Division of Youth and Family Services v. L.L., provides a good opportunity to review New Jersey’s Kinship Legal Guardianship Act. The Act is designed to address the needs of children and caregivers in long-term “kinship” relationships, placing those children who cannot safely reside with their parents in the care of a relative or family friend. This placement option avoids the need to terminate parental rights where adoption is either unlikely or not possible.
The Act defines a “kinship legal guardian” as a “caregiver who is willing to assume care of a child due to parental incapacity, with the intent to raise the child to adulthood, and who is appointed the kinship legal guardian of the child by the court[.]" From a legal rights standpoint, the guardian has the same “rights, responsibilities and authority relating to the child as a birth parent,” subject to various limitations set forth in the Act. By that same token, the birth parent can consent to an adoption or name change, must continue to pay child support, and can still have parenting time with the child as determined by the Court. As parental rights are not terminated, the Act logically provides that the child does not lose rights derived from the parents, such as rights of inheritance, benefits, etc.
Declaring unconstitutional a 30-year old state law prohibiting gay men and women from adopting children in Florida, a Circuit Court there recently concluded that Florida should no longer be the only state with a blanket ban of this kind. In the Matter of the Adoption of John Doe and James Doe came before the Court on a petition for adoption of two foster children by a gay man who had raised the children since 2004.
The second Florida Court this year to declare the law unconstitutional, the Court declared that the law violated both the petitioner’s and the children’s equal protection rights guaranteed by the Florida Constitution without setting forth a rational basis. The Court also declared that the law unlawfully prevented a child’s right to permanency as provided by federal and state law pursuant to the Adoption and Safe Families Act of 1997. In so doing, the Court rejected the State’s arguments that the law served the best interests of children because homosexuals allegedly experienced higher levels of stressors detrimental to children; that such adoptions did not minimize children’s social stigmatization; and that the law protected a child’s societal moral interests.
Notably, Florida Attorney General Bill McCollum stated shortly after the decision’s release that it would be appealed, on behalf of the Department of Children & Families, to the Third District Court of Appeal in Miami.
The New Jersey Appellate Division recently handed down an interesting decision regarding termination of parental rights and kinship legal guardianship interpreting the Kinship Legal Guardianship Act in New Jersey. In the matter of Division of Youth and Family Services v. D.H. and J.V., was a case where the Law Guardian filed an interlocutory appeal from…