When a parent agrees to voluntarily surrender his or her parental rights, the right to visitation with that child is generally terminated. As demonstrated in a recent New Jersey Appellate Division decision, a parent who has surrendered their parental rights has a significant legal hurdle if they wish to establish a visitation schedule with the child.

In New Jersey, parents are entitled to a presumption that they are acting in their child(ren)’s best interests, including deciding whether to allow visitation by a third-party. This presumption applies equally to biological and adoptive parents; thus, an adoptive parent could bar a biological parent who has surrendered his or her parental rights from seeing the child. The right to bar contact between a child and a third-party is not absolute however, and a court may order third-party visitation over a parent’s objections in exceptional circumstances. In order to obtain visitation and overcome the presumption, the third party must demonstrate that the child would suffer harm if deprived of contact with the third-party. The harm to the child must be “a particular identifiable harm” specific to the child’s health or welfare.

In K.D. v. A.S., the biological mother surrendered to her mother her parental rights to her child. Her mother subsequently adopted the child, but shortly thereafter died. The child was then placed with a non-relative who also adopted the child. The new adoptive parent then decided to cease allowing visitation between the biological mother and the child. The biological mother sought a Court Order permitting her visitation with her biological child, but the Court denied her request.

The Trial Court analyzed K.D.’s request for visitation under several legal theories including 1) her status as the child’s biological mother whose parental rights had been terminated; 2) as a legal sibling since her mother initially adopted her son; and 3) as a psychological parent. The court found that as a biological parent who voluntarily surrendered her parental rights, K.D. lacked standing to request visitation. Further, the law did not recognize K.D. as the child’s sibling, because to do so would undermine the public policy permitting termination of parental rights and subsequent adoption. Finally, the Trial Court found there was no showing that K.D. was a psychological parent. As a result, there were no exceptional circumstances requiring the court’s intervention, and K.D. failed to establish that visitation was necessary to avoid harm to the child. The Appellate Division upheld the Trial Court’s ruling.

As the case of K.D. v. A.S. demonstrates, it is important to consult an experienced attorney before making important legal decisions regarding custody of your child. If you are faced with such a decision, contact us for assistance. Our experienced attorneys will guide you through this process.


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