Joint Custody and Adopted Children

Let me start with clear and unquestionable truth: Sole custody endangers the bond between adoptive parents and adopted children.

For us, parents of adoptive children, divorce after adoption brings a special kind of tragedy that adds to the already tragic condition of living without our children. I have referred to Beck v. Beck case before in this blog for several reasons. This case set a precedent for joint custody cases, stated the primacy of physical custody as the factor that defines parent-child relationships, and stated that a children have equal need of their fathers and mothers. However, I have another reason far more personal. In this case, what is in dispute is the custody of adopted children.

While having children is always a blessing, being, like in my case, incapable of having biological children and receiving the gift of an adoptive child, is a very special privilege. This child is never an accident, an unplanned consequence: this child has been chosen by the love of his/her parents. I will not try to explain here how many and beautiful are the dreams of a parent who adopts a child. Neither will I try to explain the profound and tender love that adoptive parents develop for their children. Nevertheless, I will certainly try to highlight the importance of physical custody for the parents of adopted children.

The fact that allows people to adopt as their own other’s people children, is that what really makes a child your child is that he/she is raised by you, and what makes someone your parent is that he/she raised you, and by raising I refer to the day to day type of contact that only physical custody can provide.

Even when adopted children get to know their biological parents, the children will consider parents only the ones who have raised them. This fact implies a truth that should be considered here: that in the absence of a bloodline between a parent and a child, like in the case of adopted children, sharing the dynamics of day-to-day life is what creates the bond between them. For an adoptive parent, the physical custody of his child is not one of the ways to create a bond with his child, it is the only way. Beck v. Beck affirms this singularity of adopted children, stating:

…that because the girls were adopted, they needed “the benefit, contact, and security of both parents.” 86 N.J. 489 (1981)

Beck v. Beck admonished against endangering this attachment between the adopted girls and their father:

Viewing the issue in terms of the importance of fatherhood in the lives of the two girls, it (the court) concluded that the lack of real contact with the father would have negative developmental effects, particularly because the girls are adopted. 86 N.J. 492-93 (1981)

Depriving adopted children from one of their parents, as family courts usually do in custody cases, takes away for the second time what life has already taken once: the love, comfort, and security that only their father and mother can give them.

To Whom It May Concern

One of my purposes in writing this blog is to encourage other parents to share their stories about their ordeals with the family courts system. To lead by example, allow me to share my story.

On August of 2002, I moved from Puerto Rico to New Jersey with my ex-wife. During the last months of 2003, due to my infertility, we started an adoption process. In April 18 of 2004, my daughter Sofía was born, and ten days after her birth she moved with us; the following year, on July 21 of 2005, the adoption was completed. The following month, on August 28 of 2006, my ex-wife tells me that she wanted to end our marriage. My ex-wife deserted me and abandoned the apartment shared by us on March 18 of 2006, taking with her our daughter, without my consent. Since then, I have tried to convince her that the joint physical and legal custody is the best for our child and for us, but the she rejects the idea, since she does not believe in the concept of joint custody. To break the impasse on which we were, on September 22 of 2006 I submitted a motion asking for a court order for a Best Interest Evaluation and a Custody Visitation Evaluation. I hoped that this evaluation would have given the Court reasonable criteria to decide the award of custody. The motion was denied on October 20, and unexpectedly since custody was not in question, that same day judge Claude Coleman decided the custody and awarded joint legal custody to both parents and physical custody to the my ex-wife. I appealed the decision on December 1rst of 2006, and my appeal was denied by the judges Gilroy and Lihotz of the Appellate Division on August 9 of 2007. I then filed a petition for certification to the Supreme Court, and it was denied on February 4 of 2008, with Judge Stuart Rabner as witness.

I object this decision for several reasons. First, the custody award ignores the state policy favoring joint custody. Second, the order shows that the trial court disregarded or ignored the basic facts of this case. Third, the fact that Sofía is adopted makes physical custody indispensable to create a healthy parent-child relationship.

The public policy of the State of New Jersey is to favor joint custody arrangements. My case meets the conditions for such an arrangement: both parents are fit, both have a close relationship with the child, they live close to each other, both can cooperate with each other, and both are willing to accept custody. To deny a parent the custody of his/her child, that parent has to be proven unfit, and this is not the case. On the contrary, the very same court that denied me joined custody, affirmed the fitness of both parents.

The decision awarding physical custody of my daughter to my ex-wife was based on an absolute lack of knowledge about the case. In the Final Dual Judgment of Divorce (January 2007), the trial court’s judge, Claude Coleman, refers to the my ex-wife as “the natural mother” of Sofía, who had breastfed her, when since the very beginning of this process has been stated clearly that Sofia is an adopted child and therefore, my ex-wife was not her natural mother, and it was biologically impossible for her to breast-feed Sofía. Furthermore, the trial court made up speculations on who had been the primary caregiver of the child before the separation, and on how strong was the bond between my daughter and me. This erroneous affirmation reveals one of three equally terrible things: that the judge lied about the case, that he had no knowledge whatsoever about the case he was dealing with, or worst than that, he did not care enough to get that knowledge. All these choices require the reversal of a custody award based on such incompetence and lack of knowledge. Evidence of this was submitted to judges Gilroy and Lihotz of the Appellate Division and judge Rabner of the Supreme Court, and they deliberately ignored it, following the unwritten law of “one hand washes the other.”

The fact that Sofía is an adopted child makes this situation especially delicate. In the absence of a bloodline between a parent and a child, like in the case of adopted children, sharing the dynamics of day-to-day life is what creates the bond between them. For an adoptive parent, the physical custody of his child is not one of the ways to create a bond with his child: it is the only way. Since Sofía is an adopted child, depriving her from one of her parents will take away, for the second time, what life has already taken once: the love, comfort, and security that only her father and mother can give her.

There are even ethical connotations that the Essex County Bar should consider. Judge Stuart Rabner, who served as witness when the petition for certification that I filed to the Supreme Court was denied, has the same last name as one of the attorneys of my ex-wife, Rabner, Allcorn, Baumgart and Ben-Asher.

I have never asked sole custody of my child. I haven’t because I truly believe that sole custody is a something that harms children by depriving them of one of their parents, something that should be avoided and that should be granted only if one of the parents represents a danger to his/her children. What I ask is for the joint physical custody of my daughter, so that my daughter could stay with each parent the same amount of time.

At this moment, since custody cases are never closed, I am still looking for a new opportunity to present again my request for joint custody before another judge, a judge sensible and compassionate enough to award a custody arrangement that protect the well-being of my daughter. I ask for a change of judge, because judge Claude Coleman, who has been in charge of the case since the very beginning, has shown no interest whatsoever on dealing responsibly with it, even when his decisions have no relation with the facts of the case, even when my ex-wife has taken our daughter out of state, even when my ex-wife has broken the parenting schedule, even when my ex-wife has moved our daughter out of town without discussing the issue with me.

I will never give up in my fight for joint custody. I cannot. My child is waiting for me.

Thanksgiving

This Thursday the people of the United States celebrated Thanksgiving Day. On that day, we the believers dedicate time to meditate on the gifts that God ha brought into our lives and give Him thanks for them. Since I am a believer, I join that celebration, join that exercise in gratitude. Allow me then to take a rest from the battle for this week and enumerate briefly some of the many gifts that God’s grace has granted me.

I thank God for my family in Puerto Rico, because even in the distance they have been my support in the moments when I needed it the most.

I thank God for my old friends, who have the extended family that, if not my blood, life has given me.

I thank God for my new friends and brothers in arms that life has brought me during this year, letting me know this way that I am not alone in this struggle.

I thank God because He is reestablishing multiplied everything that life had taken from me.

I thank God for the prosperity that has began to bloom in my life, alter a long season of limitations and needs.

I thank God for my health, health to fight the struggles of today and the struggles that Hill come tomorrow.

I thank God for the First United Methodist Church of Montclair, New Jersey, because when my shadows where most dark, it was the instrument used by God to bring back hope.

I thank God for give a job that I like and in which I have a professional future full of possibilities.

I thank God for the privilege of being an adoptive parent, privilege of bringing to a little girl the love and care that every child needs and deserves.

An above all, I thank God for my daughter Sofía Isabel, definitely the greatest and most important of all His gifts.

For all these things, thanks God.