9:3-46 Objection to adoption.

10. a. A person who is entitled to notice pursuant to section 9 of P.L.1977, c.367 (C.9:3-45) shall have the right to object to the adoption of his child within 20 days after the filing of the complaint for adoption for a State resident and 35 days after the filing in the case of a nonresident. Failure to object within that time period constitutes a waiver of the right to object.

In a contest between a person who is entitled to notice pursuant to section 9 of P.L.1977, c.367 (C.9:3-45) objecting to the adoption and the prospective adoptive parent, the standard shall be the best interest of the child. The best interest of a child requires that a parent affirmatively assume the duties encompassed by the role of being a parent. In determining whether a parent has affirmatively assumed the duties of a parent, the court shall consider, but is not limited to consideration of, the fulfillment of financial obligations for the birth and care of the child, demonstration of continued interest in the child, demonstration of a genuine effort to maintain communication with the child, and demonstration of the establishment and maintenance of a place of importance in the child's life.

A judgment of adoption shall be entered over an objection of a person who is entitled to notice pursuant to section 9 of P.L.1977, c.367 (C.9:3-45) communicated to the court by personal appearance or by letter if the court finds, during the six-month period prior to the placement of the child for adoption or within 120 days after the birth of a child or prior to the date of the preliminary hearing, whichever occurs first, in the case of a child placed for adoption as a newborn infant:

(1) that the parent has substantially failed to perform the regular and expected parental functions of care and support of the child, although able to do so, or

(2) that the parent is unable to perform the regular and expected parental functions of care and support of the child and that the parent's inability to perform those functions is unlikely to change in the immediate future.

The regular and expected functions of care and support of a child shall include the following:

(a) the maintenance of a relationship with the child such that the child perceives the person as his parent;

(b) communicating with the child or person having legal custody of the child and parenting time rights, or unless prevented from so doing by the custodial parent or other custodian of the child or a social service agency over the birth parent's objection; or

(c) providing financial support for the child unless prevented from doing so by the custodial parent or other custodian of the child or a social service agency.

A parent shall be presumed to have failed to perform the regular and expected parental functions of care and support of the child if the court finds that the situation set forth in paragraph (1) or (2) has occurred during the six-month period prior to the placement of the child for adoption, or within 120 days after the birth of a child or prior to the date of the preliminary hearing, whichever occurs first, in the case of a child placed for adoption as a newborn infant.

In the case where the objecting parent is incarcerated during the six-month period prior to placement of the child for adoption, relevant factors to be considered in determining whether that incarcerated parent has failed to perform the regular and expected parental functions or is unable to perform the regular and expected parental functions pursuant to this subsection, shall include the extent of the relationship which existed between the parent and child prior to incarceration, including financial support; the efforts made to continue a relationship during the incarceration; the ability to communicate and visit with the child during incarceration; and the effect of the communication and visitation on the child's development in terms of providing nurturing and emotional support.

b. The guardian of a child to be adopted who has not executed a surrender pursuant to section 5 of P.L.1977, c.367 (C.9:3-41) and any other person who has provided primary care and supervision in his home for the child for a period of six months or one half of the life of the child, whichever is less, in the two years prior to the complaint shall be given notice of the action and in accordance with the Rules of Court shall have standing to object to the adoption, which objection shall be given due consideration by the court in determining whether the best interests of the child would be promoted by the adoption.

L.1977,c.367,s.10; amended 1993, c.345, s.9; 1997, c.299, s.10; 1998, c.20, s.2.