New York Family Law Blog
A New York Family Lawyer said the issue before the Court is whether a biological mother — who continues to pay child support but agreed to an order permanently suspending her visitation — has abandoned her children rendering her consent unnecessary to their adoption by their step-mother. By amended petitions filed, the petitioner step-mother seeks to adopt the children. By motion filed, the Respondent biological mother moves for summary judgment dismissing the petitions as she does not consent to the adoptions. On April 5, 2007 the Court granted the Respondent’s motion for summary judgment and dismissed the petitions. A written order was entered and mailed to the parties. This written decision memorializes the oral decision issued from the Bench.
The two children unfortunately have been entangled with the Family Court proceedings since early childhood. In 2000, the Respondent was found to have neglected her children. In 2001, there was a custodial dispute between the children’s father and the Respondent resulting in an order of joint custody with primary physical residency with the Father. A New York Child Custody Lawyer said the proceedings were then transferred to the Integrated Domestic Violence Part resulting in the current custodial consent order which grants sole custody of the children to Father and suspends the Respondent’s visitation, additionally ordering that the Respondent shall not seek visitation. The order also states that the Respondent and the Father must share access to the children’s records; and it is also ordered that the Father must keep the Respondent updated regarding issues with the children and provide the Respondent with the children’s school photographs. The Respondent also was ordered to pay $50.00 monthly in child support. The Respondent has consistently paid child support. The Father both has accepted the monthly support payments and has never petitioned for a modification of the Respondent’s support obligation. The children live with the Father and the Petitioner. The Father supports the Petitioner’s applications to adopt the children. The Petitioner contends that she does not need the Respondent’s consent to the adoptions because the Respondent has abandoned the children.
Petitioner can proceed with the adoptions only if she either obtains the Respondent’s consent or can prove that the Respondent has evinced an intent to forgo her parental rights and obligations as manifested by her failure for a period of six months to visit the children and communicate with the children or person having legal custody of the child, although able to do so.
A New York City Family Lawyer said payment by a parent toward the support of the children of a fair and reasonable sum, according to the parent’s means, shall be deemed a substantial communication by such parent with the children or person having legal custody of the children.
The Respondent has proven her legitimate entitlement to summary judgment by offering proof in admissible form that she has communicated with the children through her consistent payment of child support. In support of her motion, the Respondent submits the Order of Support ordering her to pay $50.00 monthly in child support. A Manhattan Family Lawyer said he additionally submits deposition testimony from Father who admits that the Respondent has paid approximately $50.00 per month in child support since 2004. The Father further avers both that he has accepted all support payments and has never petitioned for an increase in the Respondent’s support obligation. The Father admits that the Respondent has consistently paid support and has not missed a payment in the past year. In fact, the Respondent has missed only a couple of payments since 2004. Finally, the Father avers that at the time of the support order, he earned approximately $4,000 monthly and he currently earns between $4,000 and $6,000 monthly.
The Petitioner argues that the Respondent is not entitled to summary judgment because the Respondent has failed to prove that she has voluntarily communicated with her children and has failed to pay a fair and reasonable sum according to her means for the support of her children. The Petitioner fails to show facts sufficient to require a trial on issues regarding the voluntariness of the Respondent’s child support payments; and whether $50.00 per month is a fair and reasonable sum according to the Respondent’s means, payments are deemed involuntary when the payor tries to avoid paying child support.
To the contrary, child support payments are deemed voluntary when the payor complies voluntarily with a child support order even if done by wage deduction order — especially where the custodial parent has voluntarily accepted the child support payments, the court affirmed a finding that child support payments were voluntary. There, although violation petitions had to be filed, respondent-father paid outstanding arrears and was current in his payments at the time of the hearing. The Supreme Court, Third Department also affirmed family court’s finding that such support payments constituted proof that respondent-father maintained a substantial relationship with his son — even though respondent-father had not visited with his son in the six months preceding the filing of the adoption petition.
The petitioner also argues that monthly support payments of $50.00 are not fair and reasonable according to Respondent’s means. Respondent was ordered to pay $50.00 monthly pursuant to the Child Support Standards Act. If Father disagreed with the findings of that order, he could have either appealed it or petitioned for a modification. He did neither. Father’s deposition testimony proves that he currently earns at least the same or more than he did at the time of the support order. Father continues to accept the support payments and thus is estopped from arguing that the amount is insufficient.
The petitioner attempts to persuade the Court that the Respondent has abandoned the children because she has not visited with them for a period of more than six months. The law is clear however that a biological mother’s consent is always required for the adoption of her children unless she fails both to visit and to pay child support (communicate). The Respondent has proven that she has communicated with her children through the payment of support.
The Court takes judicial notice of the prior court orders. While the Court is unfamiliar with the facts that resulted in the consent order preventing the Respondent from seeking visitation with the children, the Court notes that the Respondent has appeared in all prior proceedings. Such action is evidence that it is not her actual intent to abandon the children and her own parental position or she would have simply defaulted.
As the law stands, the court do not strip natural parents of their position simply because there is someone in the children’s lives more consistent, considerate and responsible — in short, someone who is doing a better job of raising the children. This is because a termination of parental rights is a drastic event indeed, so much so that it raises questions of constitutional dimension. Accordingly, the law imposes a heavy burden of constitutional magnitude on one who would terminate the rights of a natural parent through adoption. Only after a finding of abandonment of the child by the natural parent do the merits of the proposed adoptive parent become relevant.
Accordingly, as previously ordered by the Court, the Respondent’s motion for summary judgment is granted and in as much as the Respondent does not consent to the Petitioner’s adoption of the children, the petitions are dismissed with prejudice.
Fulfilling parental obligations are sometimes measured by the amount of money that is given for support. If you want to keep your right as a parent, speak with the Suffolk County Family Lawyer or a Suffolk County Guardianship Attorney from Stephen Bilkis and Associates. A Suffolk County Child Support Lawyer will also be available for you if you need one.