In recent years, the pendulum has continued swinging in the direction of making it easier for the parent with physical custody of the children to relocate out-of-state with the children. That trend has continued in 2011 with a key decision by the New Jersey Supreme Court (our highest court).
But to me, the interesting twist of that decision (Morgan v. Morgan) was that the Supreme Court sent the relocation and custodial issues back to the trial court to review in light of the four-year passage of time since the trial court’s initial decision to permit relocation. This leaves open the possibility that based on significant changes in the parent’s and the children’s lives in the intervening four years, permission for the relocation may actually be reversed. So for instance, if the parent who was left behind can prove that the move has effectively cause the children to be alienated, will the trial court in hindsight now retroactively refuse to grant permission to move with the children?
If there had not been a complete upheaval in the children’s lives as a result of the relocation, imagine what those children will face if four years later they are told they will be returning to New Jersey.
In a recent unanimous New Jersey Supreme Court decision, In the Matter of D.C. and D.C., it was established that adoptive parents cannot ignore blood bonds between siblings and may be ordered to permit sibling visitation where it is necessary to avoid harm to the child. This case concerned twin girls who were placed in a foster home at three months. The twins’ older brother, then 13, was placed with an adult sister in Virginia, Nellie, who wanted to adopt him. Nellie wanted to adopt the twins as well, but in the interim won visitation rights.
In August 2007, Virginia’s child welfare agency recommended placing the twins with their sister, but revoked the recommendation in December 2007 largely due to her financial problems at the time and the poor academic progress of the 13-year-old brother. In the same month, the court terminated the natural mother’s parental rights to all three of the children. In January 2008, the N.J. Division of Youth and Family Services (DYFS) denied Nellie’s application to be a kinship guardian of the twins and terminated her visitation rights with them. Nellie sued in April 2008, seeking placement of the twins in her care, or in the alternative, the right to regularly visit them. DYFS took the position that it controls a child’s life after termination of parental rights and that control is not subject to judicial review.
In June 2008, Hudson County Superior Court ordered continued visitation between Nellie, her 13-year-old brother and the twins. However, the next month, the twins’ foster mother said she would not facilitate such visitation. In New Jersey, the standard for determining custody arrangements is the “best interests” of the child. Nellie then sought to enforce the June 2008 order, but the Court ruled that, in light of the termination of their natural mother’s parental rights, the best interests of the twins trumped the siblings’ rights to visitation. The Appellate Division agreed with the decision that Nellie be denied visitation. The New Jersey Supreme Court, however, focused on the question of sibling visitation rights before and after adoption, thereby clarifying the rights of children in placement from this point forward.
Before adoption, the Child Placement Bill of Rights Act gives children in out-of-home placements the right to visit with the child’s sibling on a regular basis and to otherwise maintain contact if the children are placed separately. This means that before adoption, the right to sibling visitation is presumed and DYFS has an obligation to facilitate it. If DYFS opposes visitation, it must prove that such contact is against the child’s best interests. After adoption, a different standard applies. Sibling visitation is then governed by the Grandparent and Sibling Visitation Statute under the same rules that apply to biological families. Accordingly, adoptive parents may be ordered to permit sibling visitation if the party seeking the visitation can prove that the child would be harmed if denied sibling contact.
The New Jersey Supreme Court has clarified the rights of children in placement to have contact with their siblings following the termination of parental rights. As a result, sibling visitation rights may be enforced even after adoption.