Articles Posted in Custody

This case raises the issue of the legal implications of the reservation of rights in surrender instruments executed by natural parents in accordance with the terms of Social Services Law § 383-c vis-a-vis the long-standing policy of this State that in an adoption the natural parent “shall have no rights over such adoptive child” (Domestic Relations Law § 117[1][a]. A New York Family Lawyer said the subject child was born September 15, 1989 and was placed in foster care in January 1991 after a finding of neglect. The child’s mother was convicted of manslaughter in 1991 for the death of the subject child’s brother and sentenced to six to eighteen years imprisonment. In June 1991, the agency placed the child with petitioner, his maternal great-aunt, where he has since resided continuously. The child has bonded with petitioner and her two daughters. Petitioner has maintained a relationship with the child’s mother and has taken him to the correctional institution for visitation. Petitioner desires to adopt the child. The agency discussed such adoption with the mother in developing the child’s permanent plan. On November 18, 1992, before the Judge of a Family Court, New York County, a Bronx Child Custody Lawyer said that the mother surrendered the child for adoption, specifically solely by petitioner, pursuant to Social Services Law § 383-c. The surrender order further provides that the mother shall have such visits with the child after adoption as agreed to between the mother and petitioner. The child’s father executed a surrender on February 11, 1993 on the same terms and conditions.

A Bronx Family Lawyer said that, the adoption petition and support papers were executed by petitioner and the proceeding, supported by the agency, was initiated in the Bronx, petitioner’s county of residence. Petitioner also requested that the child retain his biological mother’s surname as that is the name by which he is known and identifies himself. A Bronx Family Lawyer said that, the court thereafter requested further information which was submitted. Petitioner and counsel appeared, and when questioned, counsel stated that there was nothing to be changed or modified in the papers, but if the court wanted anything, counsel would address it. The court dismissed the petition without a hearing.

The issue in this case is whether the biological parents of the subject child, after surrendering the child for adoption, retained its right over the child.

The appellant in this particular case is C. Lynn Elson and the respondent in the matter is Barry R. Elson. The case is being heard in the Appellate Division, Second Department of the Supreme Court of the State of New York. A New York Family Lawyer said the question that is put before the court in this case is the impact of an out of state divorce decree on the equitable distribution of the estate that is in the state of New York.

Case Background

The defendant husband in this action resided in the state of Colorado for two years. He pursued an action to obtain a divorce in the state of Colorado after this time. The decree for divorce is dated the 28th of December, 1979. This precludes the effective date of the Equitable Distribution Law of this state by seven months.

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The subject children are two minor boys, born November 26, 2001, and, born August 1, 2005. After the birth of the first child, the mother moved, with him, to Florida. Thereafter, by stipulation dated October 27, 2003, the parties agreed to joint legal and residential child custody until the first born child reached school age, at which point residential custody would revert to the mother on condition that she moved back to New York. Before the first born child reached school age, the parties reconciled, and resided together in Suffolk County, where the second child was born.

A New York Family Lawyer said that on April 2007, a Bronx Child Custody Lawyer said that, the mother took both children from Centereach in Suffolk County to live with her mother in the Bronx, and filed petitions for sole child custody. The father filed cross petitions for sole child custody. In May 2007, an order of protection was entered upon consent, directing the father to stay away from the mother, her home, and her place of employment, except for visitation purposes. The parties agreed that the father would have visitation on alternate weekends. Thereafter, a hearing was conducted with respect to custody. It is clear from the evidence adduced at the hearing that both parties are loving parents and neither party is unfit. However, the record discloses certain troublesome facts about each of the parties. It is apparent that the relationship between the parties was a stormy one, and the father acknowledged that “everybody yells.”

A New York Custody Lawyer said that, the Family Court directed the mother to register the first born child in first grade in the Middle Country School District in Suffolk County, where he had attended kindergarten. However, when the mother changed her residence and place of employment to Queens, she enrolled the first borne child in school there, contrary to the direct order of the Family Court. At the custody hearing, the father’s neighbor testified that he had heard the father cursing, and observed visitors and noisy parties at the father’s house “at all hours of the night.” In August 2007 he observed police activity at the father’s house, and spoke to the police detectives. The father acknowledged that his house, owned by him and the mother jointly, was in foreclosure. Further, the father had a criminal record consisting of two felony convictions and one misdemeanor conviction from the 1990s. At the conclusion of the hearing, the children’s attorney noted that this was a difficult case since both parties were “clearly flawed,” but also had “strengths and good points.” However, she recommended that the children remain with the mother in the interest of stability, since the mother had had sole custody of them for seven months during the pendency of the proceedings, and the father’s house was in foreclosure.

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