Jon and Michael Galluccio Family Homepage

I. Introduction
Plaintiffs bring this civil rights class action for injunctive relief against the New Jersey Department of Human Services ("DHS"); the Division of Youth and Family Services ("DYFS"); William Waldman, Commissioner of DHS; and Michelle Ghul, Deputy Commissioner of DYFS, for violation of New Jersey's adoption statute and the New Jersey and United States Constitutions.
N.J.S.A. 9:3-43(a) provides that "[a]ny person may institute an action for adoption, except that a married person may do so only with the written consent of his spouse or jointly with his spouse in the same action." Notwithstanding this statutory language, the administrative regulations of DYFS state that "[i]n the case of an unmarried couple co-habitating, only one person can legally adopt a child." Manual IIM, Sec. 21, Subsec. 31, DYFS Adoption Services (hereinafter referred to as "DYFS's regulation"). Plaintiffs JON HOLDEN, MICHAEL GALLUCCIO and LAMBDA FAMILIES bring this class action, on behalf of lesbian and gay couples who live together in the State of New Jersey and would like to jointly adopt, challenging the legality of the DYFS regulation.

Plaintiffs JON HOLDEN and MICHAEL GALLUCCIO are two men in a long-term, committed relationship who share a home in Maywood, New Jersey and who seek to jointly adopt children together as a family. Plaintiffs HOLDEN and GALLUCCIO applied to DYFS for permission to adopt a child and were approved together as an adoptive family. However, the State of New Jersey will not consent to their joint adoption because they are not married. Under DYFS's regulation a qualified married couple can jointly adopt a child, but a qualified unmarried couple like Plaintiffs HOLDEN and GALLUCCIO must go through a cumbersome and costly two-step process: first, one member of the couple must petition for adoption with the consent of the State, and then the other parent must file a petition for a "second parent adoption" with the courts. This regulation is not authorized by New Jersey's adoption statute, but instead conflicts with the statute because it does not serve the best interests of children. It is therefore ultra vires and invalid. In addition, by allowing a qualified married couple to jointly adopt, while requiring a qualified unmarried couple to adopt through a cumbersome and costly two-step process, the DYFS regulation creates a classification that treats unmarried couples differently from married couples. Because there is no rational basis for this differential treatment, the DYFS regulation violates the Equal Protection guarantees of the United States and New Jersey Constitutions. Plaintiffs HOLDEN, GALLUCCIO and LAMBDA FAMILIES therefore file this class action for injunctive relief and ask this Court to declare the DYFS regulation invalid and enjoin its enforcement.

II. PARTIES
A. Named Representatives

6. Plaintiff JON HOLDEN ("HOLDEN") is an individual who resides in Maywood, New Jersey and is the long-term partner of Michael Galluccio.

7. Plaintiff MICHAEL GALLUCCIO ("GALLUCIO") is an individual who resides in Maywood, New Jersey and is the long-term partner of Jon Holden.

8. Plaintiff LAMBDA FAMILIES is an unincorporated association located in West Orange, New Jersey and is dedicated to advocating on behalf of lesbian and gay families. LAMBDA FAMILIES is composed of families headed by lesbian and gay parents, some of whom would like to adopt children. LAMBDA FAMILIES has approximately three hundred and fifty members who live in the State of New Jersey.

B. Defendants

9. Defendant DEPARTMENT OF HUMAN SERVICES is an agency of the State of New Jersey. It is organized and exists under the laws of the State of New Jersey. DHS and its subdivisions are charged with the administration and enforcement of New Jersey's adoption statute and with approving and consenting to adoptions of children within the custody of the State.

10. Defendant DIVISION OF YOUTH AND FAMILY SERVICES ("DYFS") is a subdivision of the DEPARTMENT OF HUMAN SERVICES of the State of New Jersey. It is organized and exists under the laws of the State of New Jersey. DYFS is charged with the administration and enforcement of New Jersey's adoption statute and with approving and consenting to adoptions of children within the custody of the State.

11. Defendant WILLIAM WALDMAN is the Commissioner of the DEPARTMENT OF HUMAN SERVICES. He is the agent and employee of DHS and is responsible for the administration and enforcement of New Jersey's adoption statute, and for approving and consenting to adoptions of children in the custody of the State. In taking the actions described in this Complaint, Defendant WALDMAN acted under color of law. Defendant WALDMAN is sued in his official capacity.

12. Defendant MICHELLE GHUL is the Deputy Commissioner of the DIVISION OF YOUTH AND FAMILY SERVICES. She is the agent and employee of DYFS. She is responsible for administration and enforcement of New Jersey's adoption statute, and for approving and consenting to adoptions of children within the custody of the State. In taking the actions described in this Complaint, Defendant GHUL acted under color of law. Defendant GHUL is sued in her official capacity.

III. CLASS ACTION PREREQUISITES
13. Class. This action is brought by the Plaintiffs on behalf of themselves and all other persons similarly situated whose joinder in this action is impracticable because the class is so numerous. The class consists of all members of lesbian and gay couples in the State of New Jersey who live together, are not married to each other and would like to jointly adopt a child who is in the custody of the State of New Jersey.

14. Common Questions. There are questions of law or fact common to the members of the class that predominate over questions of law or fact affecting only individual members. The question of fact common to all members of the class is that the DYFS regulation prohibits them from jointly adopting a child. The question of law common to all members of the class is whether the State of New Jersey may legally prohibit lesbian and gay couples who live together from jointly adopting a child, while allowing joint adoptions by married couples. There are no legally married lesbian and gay couples in the State of New Jersey as of the filing of this lawsuit. There are no questions of law or fact affecting only individual members of the class that are likely to arise in this action because all members of the class are categorically prohibited from jointly adopting a child, regardless of the facts of their individual case.

15. Typical Claims. The claims of the individual named Plaintiffs are that (1) the DYFS regulation prohibiting unmarried couples who live together from jointly adopting alters the scope of New Jersey's adoption statute, which contains no such restriction, and undermines the purpose of the adoption statute, namely to serve the best interests of the child; and (2) the DYFS regulation constitutes discrimination on the basis of marital status in violation of the Equal Protection guarantees of the New Jersey Constitution and the United States Constitution. These claims are typical of the claims of the entire class.

16. Representation. Plaintiffs JON HOLDEN and MICHAEL GALLUCCIO are individuals who represent the class because they live in New Jersey, are in a couple relationship, live with their partner, are not married, and would like to jointly adopt a child who is in the custody of the State of New Jersey. Plaintiff LAMBDA FAMILIES is an unincorporated membership association composed in part of lesbian and gay couples who are prevented from jointly adopting by the DYFS regulation challenged in this action; LAMBDA FAMILIES will, as a representative party, fairly and adequately protect the interests of that class.

17. Plaintiffs are represented by attorneys at the American Civil Liberties Union Foundation, by attorneys at the American Civil Liberties Union of New Jersey, and by Barbara Fox of Harris, Dickson, LLP. Counsel for Plaintiffs have the resources necessary to pursue this litigation and are experienced in class action litigation and litigation involving constitutional rights.

18. Superiority of Class Action. The maintenance of this action as a class action is superior to other available methods of adjudication in promoting the convenient administration of justice and in achieving a fair and efficient adjudication of the controversy in this matter because:

(a) the prosecution of separate actions by individual members of the class would create a risk of inconsistent or varying adjudications with respect to individual members of the class that would confront the Defendants with incompatible standards of conduct in administration of New Jersey's adoption policies;

(b) final equitable relief is appropriate in this action because the State of New Jersey is imposing, and will continue to impose, an unlawful and discriminatory policy on all unmarried lesbian and gay couples who live together in the State of New Jersey and who seek to jointly adopt a child in the custody of the State; and

(c) the action is manageable as a class action because all class members have identical claims with regard to the challenged DYFS regulation and the action seeks only injunctive relief and attorneys' fees and costs.

IV. EVENTS AND FACTUAL BASIS
19. Plaintiffs HOLDEN and GALLUCCIO are in a long-term committed relationship. They share a home together in Maywood, New Jersey, and are upstanding members of their community. Plaintiffs HOLDEN and GALLUCCIO currently serve as foster parents for a baby boy whom they seek to jointly adopt. Plaintiffs also serve as foster parents for a baby girl who is not yet in the permanent custody of the State. Plaintiffs hope to jointly adopt this child as well, should she come to be in the permanent custody of the State.

20. In April 1995, Plaintiffs HOLDEN and GALLUCCIO presented themselves to DYFS's Adoption Resource Center in Paterson, New Jersey and explained that they were a couple who wished to jointly adopt. Plaintiffs then participated in extensive training to be adoptive parents under the auspices of DYFS. DYFS conducted a home study of the couple, which concluded they were qualified to adopt. In October 1995, Plaintiffs received a letter from DYFS stating: "It is with pleasure that we write to inform you that you have successfully completed all requirements and are now an approved adoptive family." Exhibit A.

21. Subsequently, DYFS approved Plaintiffs HOLDEN and GALLUCCIO as foster parents for a baby boy, who began living in their home on January 3, 1996. The baby's "Individual & Family Assessment Plan," drawn up by DYFS officials, identified Plaintiffs HOLDEN and GALLUCCIO as the boy's adoptive parents.

22. On November 8, 1996, DYFS executed a "Consent Of Custodian To Adoption" naming Plaintiff GALLUCCIO as the only adoptive parent of the baby. In a letter dated February 20, 1997, Patricia Balasco-Barr, former Director of DYFS, stated that DYFS's regulations prohibited joint adoption of the baby by Plaintiffs HOLDEN and GALLUCCIO because the two men are not married. Ms. Balasco-Barr further stated that "[t]he Division does not dispute their ability to make use of a step-parent adoption, once one of you has adopted [the baby]." Exhibit B.

FIRST CAUSE OF ACTION
[Violation of N.J.S.A 9:3-43(a), N.J.S.A. 9:3-40

and N.J.S.A. 9:3-54]

[Against All Defendants]

23. Paragraphs 1 through 22 of this Complaint are incorporated in this cause of action.

24. N.J.S.A. 9:3-43(a) provides that "[a]ny person may institute an action for adoption, except that a married person may do so only with the written consent of his spouse or jointly with his spouse in the same action or if living separate and apart from his child." N.J.S.A. 9:3-40 provides that the standard in selecting adoptive parents is "the best interests of the child." N.J.S.A. 9:3-54 authorizes the New Jersey Commissioner of Human Services and Defendant DYFS to administer and enforce New Jersey's adoption statute.

25. DYFS's regulation prohibiting joint adoption by unmarried couples and permitting them to adopt only through a cumbersome and costly two-step process adds to and varies the terms of N.J.S.A. 9:3-43(a) and N.J.S.A. 9:3-40. In addition, the regulation is in conflict with the statute because it does not serve the best interests of children. Because the regulation is beyond the scope of these statutory provisions, it violates N.J.S.A. 9:3-54, which empowers DYFS to administer New Jersey's adoption statute.

SECOND CAUSE OF ACTION
[Violation of New Jersey Constitution, Art. I, Para. 1]

[Against All Defendants]

26. Paragraphs 1 through 25 of this Complaint are incorporated in this cause of action.

27. Article I, Paragraph 1 of the New Jersey Constitution prohibits unequal treatment of those who should be treated alike.

28. The administrative regulation promulgated by DYFS categorically prohibits any qualified unmarried couple from jointly adopting a child, while permitting joint adoption by every qualified married couple.

29. As Defendants concede, New Jersey's adoption statute, as authoritatively construed by the courts of the State, permits a second-parent (step-parent) adoption by an unmarried partner of a parent. Exhibit B. The effect, therefore, of the DYFS administrative regulation is to prohibit lesbian and gay couples like Plaintiffs HOLDEN and GALLUCCIO from adopting in a single joint petition, but to allow them to adopt in a two-step petition process. Since the DYFS regulation permits married couples to adopt in a one-step process, it treats differently all unmarried couples whom the State has found qualified to adopt. The regulation therefore creates a classification based on marital status. Because there is no rational basis for this classification, the regulation violates the Equal Protection guarantee of Article I, Paragraph 1 of the New Jersey Constitution.

THIRD CAUSE OF ACTION
[Violation of U.S. Constitution, 14th Amendment;

42 USC Sec. 1983]

[Against Defendants WALDMAN and GHUL]

30. Paragraphs 1 through 29 of this Complaint are incorporated in this cause of action.

31. The Fourteenth Amendment of the United States Constitution guarantees Equal Protection of the laws to all citizens.

32. The DYFS regulation has the effect of permitting joint adoption by every qualified married couple while requiring a two-step petition process for all unmarried couples. This regulation provides unequal treatment to unmarried couples whom the State has found qualified to adopt. The regulation therefore creates a classification based on marital status. There is no rational basis for this classification. The regulation therefore violates the Equal Protection guarantee of the United States Constitution.

PRAYER
On the basis of the foregoing allegations, Plaintiffs, on behalf of themselves and all other members of the class, pray for judgment as follows:

For an order enjoining enforcement of DYFS's regulation prohibiting joint adoption by an unmarried couple because it is ultra vires and invalid;
For an order enjoining enforcement of DYFS's regulation prohibiting joint adoption by an unmarried couple because it violates the Equal Protection guarantees of the New Jersey Constitution;
For an order enjoining enforcement of DYFS's regulation prohibiting joint adoption by an unmarried couple violates the Equal Protection guarantees of the United States Constitution;
For costs of the suit and reasonable attorneys' fees pursuant to 42 U.S.C. Section 1988; and
For such other and further relief as the Court deems just and proper.
Respectfully submitted,

DATED: ___________________________

Michael Adams
ACLU Foundation
125 Broad Street
New York, NY 10004-2400
DATED: ___________________________

Lenora M. Lapidus
ACLU of New Jersey
2 Washington Place
Newark, NJ 07102