Background of this blog
A client of mine wants to adopt his 72 year old domestic partner. Both are registered domestic partners in NJ. Is this possible? Before I give you the answer, let’s explore the law of adult adoption in this state.
There are three statutory provisions that address adult adoptions; two of which are most relevant here. The first states that an adult adoption is permitted “if the court is satisfied that the adopting parent or parents are of good moral character and of reputable standing in their community, and that the adoption will be to the advantage and benefit of the person to be adopted.” N.J. Stat. Ann. § 2A:22-I. The second section stipulates further requirements for adult adoption, which include that (1) the adoption parent(s) are at least 10 years older than the person to be adopted; and (2) the person to be adopted has requested the adoption in writing.
This section of the statute also provides that a “court, upon being satisfied that the best interests of the person to be adopted would be promoted by granting the adoption, may waive any and all of the above requirements.” The second section of the statute is the more often discussed portion of the law.
Several cases in this state have provided insight into how courts apply the statutory provisions. In one case, the adult adoptees of a deceased trust beneficiary brought action against surviving trust beneficiaries, seeking declaration that the adoption judgement remained in effect and was valid for all purposes. The case revolved around the question of whether the adoption was valid or if it should be invalidated due to improper motive. In answering this question, the court looked to the policy underlying the adult adoption statute, which was to allow “adoption[s] between consenting persons, with the ability to enter a contract, when there is a strong benefit to be gained.” Applying this policy, the court held that the statutory elements for adult adoption were satisfied and that adoptees benefited financially from the adoption. The court found no proof that the adoptive parent had the purpose of manipulating trust interest, and thus found no fraudulent motive behind the adoption.
Another case similarly addressed the motive behind the adult adoption. In that case a professor unsuccessfully tried to adopt his adult cousin, so the student could receive free tuition as a student of a university professor. The court cited a published case to support the proposition that “‘the policy of placing an adoptee on a level with a natural child should not be used to permit the adoption of adults for the sole purpose of giving an interest in property.'” The court also cited to another case “that a secondary motive (which may very well be bona-fide and valid) does not detract from the fraudulent motive.” The court found that, although there could have been other motives behind the adoption, the primary motive was for the adult adoptee to gain an interest in property and an adoption should not be available when its sole purpose is to give the adoptee an economic gain otherwise not available. The court ultimately held that “that it would be an abuse of its discretion to grant the adoption requested because the sole advantage and benefit to the prospective adoptee would promote what amounts to a fraudulent aim.”
Getting back to my case; our research found a factually similar case. In that case, a married couple sought to adopt a fifty-two-year-old female, making her older than one of the potential adoptive parents, who had been living with them for over ten years. The court primarily focused on the statutory requirements and whether a waiver of the requirements was justified in this instance. The court found that the requirement of a ten-year age difference was “a method insuring that at least a semblance of a parent-child relationship existed between the adult parties.” The court repeated the statutory language that the age difference requirement may be waived, “if the court is ‘satisfied that the best interests of the person to be adopted would be promoted by granting the adoption.'” If the age difference is not satisfied, the parties’ purpose for adopting becomes a focal point of the analysis. The purpose ought to be to solidify an already-existing parent-child relationship, and if the parties do not have such a relationship and the age requirement is not met, the adoption petition must be denied since it is contrary to the legislature’s intent. Looking at the relationship between the parties, the court found no evidence of a parent-child relationship since the parties operated as equals and never characterized their relationship as a parent-child one. Furthermore, the court found no “compelling evidence as to why it would be in the adoptee’s best interests to grant the adoption and waive the age difference requirement.” And so the court denied the adoption petition because the statutory requirements were not met and there was no compelling reason as to why it would be in the adoptee’s best interest to waive the requirement.
So, it does not appear as though the client would be able to adopt his seventy-two-year-old domestic partner. Courts appear to disfavor adult adoptions carried out for the purpose of economic benefits when there is no existing parent-child relationship. If the other statutory requirements are met, then a court may be willing to overlook the motive behind the adoption. But if the age difference is less than ten years, it seems likely the court will require a parent-child relationship.
To discuss your NJ adult adoption, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at fniemann@hnlawfirm.com. Please ask us about our video conferencing or telephone consultations if you are unable to come to our office.
By Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a Freehold Township, Monmouth County, NJ Adult Adoption Attorney