The right to counsel in a family court proceeding is normally reserved for juvenile defendants facing detention upon adjudication. This would be the equivalent of an adult facing possible jail time, hence an attorney must be appointed by the courts for juveniles whose parents/ guardians cannot afford legal representation. Adults, however, are generally responsible for hiring their own attorneys, unless they choose to represent themselves. One exception to this rule involves indigent parents who are fighting to retain their parental rights by opposing a private adoption.
Contested private adoptions typically involve a mother who initially places her child up for adoption, but changes her mind at the last minute. Depending on the terms of the agency she's working with, she may have to go to court in order to terminate the adoption process. The involvement that a state court should have in a private adoption has been a long-standing legal dilemma, but there has been some clarification since the ruling In the Matter of the Adoption of a Child by J.E.V. and D.G.V. In this case, the New Jersey Supreme Court held that even though the adoption was being handled by a private agency, the termination of parental rights was ultimately the responsibility of the state under the current adoption laws.
However, the truly interesting aspect of this ruling has to do with the right to counsel for the opposing parent if that parent cannot afford to hire an attorney. In a unanimous decision, the Supreme Court held that an indigent parent who “faces termination of parental rights in a contested private adoption proceeding has a right to appointed counsel…under the due process guarantee of the New Jersey Constitution.” Their decision comes as no surprise considering that New Jersey has historically provided greater protection for the preservation of parental rights than even those afforded by the federal government and the U.S. Supreme Court.
Another important precedent set by this ruling is the point at which an attorney should be appointed for the indigent parent. The biological mother in this case objected to the adoption in writing, and it was at this point that the Supreme Court believed that the parent should have been given legal counsel. The immediate appointment of counsel is imperative, since any dispute over the termination of parental rights must be settled in court. Hence, the indigent parent must have adequate legal representation in order to be properly represented at trial.
The court's recommendation was for the Administrative Office of the Courts and the Legislature to provide the same type of legal counsel that they provide for indigent parents who are about to have their parental rights terminated by the Division of Child Protection and Permanency. This recommendation speaks to the importance of legal representation for all the involved parties in a private adoption. For more information on your parental rights and legal options, please speak with the family law attorneys of Villani & DeLuca, P.C.