New York Family Law Blog
The petitioner mother and her husband filed a petition for adoption, seeking the court’s approval of the proposed adoption of a child. The petitioner is the natural mother of the child and her husband seeks to adopt the child. The natural father of the child was incarcerated at the time of the filing of the adoption petition. He was released from a New York State correctional facility and he was personally served with the notice of proposed adoption at the home of his parents.
A New York Family Lawyer said the petitioner mother filed a petition to modify a prior order of visitation, and order to show cause, seeking to suspend all father’s rights of visitation, pending the proceedings on the separate but related petition for adoption. The order to show cause, suspending visitation until further order of the court was signed.
The respondent father filed a motion to dismiss the visitation modification petition, and oral argument was heard. Decision was reserved, and the court issued a written decision denying the respondent father’s motion to dismiss. A hearing on the adoption petition commenced and after five days of testimony, the hearing concluded at which time the court reserved the decision. The decision shall serve as the order of the court.
A New York Child Custody Lawyer said the issue presented by the petition for adoption is controlled by Domestic Relations Law, which directs whose consent must be secured before a child may be adopted. The petitioners assert in their petition that consent of the natural father to the proposed adoption is not required because the natural father has failed to maintain adequate contact and communication with the child, or the person having the care and custody of the child, for a period of six months or more. The petitioners further allege in their petition that the natural father has failed to provide reasonable financial support for the benefit of the child.
Domestic Relations Law directs that consent to the adoption of a child born out of wedlock is required of the mother and of the natural father, where the child is more than six months old. A Suffolk County Family Lawyer said the consent of the father of an out-of-wedlock child over the age of six months is only required, however, if such father shall have maintained substantial and continuous or repeated contact with the child as manifested by the payment by the father toward the support of the child of a fair and reasonable sum, according to the father’s means, and either the father’s visiting the child at least monthly when physically and financially able to do so and not prevented from doing so by the person or authorized agency having lawful custody of the child, or the father’s regular communication with the child or with the person or agency having the care or custody of the child, when physically and financially unable to visit the child or prevented from doing so by the person or authorized agency having lawful custody of the child.
A Westchester County Family Lawyer said pursuant to Domestic Relations Law consent shall not be required of a parent who evinces his intent to forego parental rights and obligations as manifested by his failure for a period of six months to visit or communicate with the child. The courts have held that a parent’s attempts to exercise visitation rights after the filing of the petition for adoption are of no legal significance. It is the six months immediately preceding the filing of the petition for adoption that will be scrutinized by the court.
The respondent father has the burden of proof to establish that he maintained the requisite contact in the relevant time period. Pursuant to Domestic Relations Law, an unwed father must establish substantial and continuous or repeated contact with the child as manifested by the payment of support of a fair and reasonable sum. With regard to this first prong of the requirements set forth in Domestic Relations Law, the court makes the following finding, based upon the testimony and evidence received, and in view of the relevant time period: at the hearing, the respondent father was specifically asked by opposing counsel, with regard to the respondent’s payment history, whether there were any payments of child support that the father had made that were not reflected on the document. The response of the respondent was that he cannot recall. The court notes that the exhibit lists no payment of support for the time period of September 2000 through March of 2001 (in fact, there were no payments of support whatsoever in the year 2000, and the first payment of support in 2001 is a May 14, 2001 payment).
The respondent was incarcerated from October 21, 1999 until April 5, 2001. The fact of his incarceration does not, however, relieve him from his obligations. Domestic Relations Law specifically provides that the payment of a fair and reasonable sum shall be as according to the father’s means. The courts have held that incarceration does not excuse the father from his obligation to pay support. Even if the court were to look outside of the six months immediately prior to the relevant time frame, the respondent has, at best, a spotty record of the payment of support. Additionally, as testified to at the hearing, most of what support has been paid for this child has been paid by the child’s paternal grandparents. Although the father’s mother testified that when her son was working, he would get things for his daughter or pay back some money to his parents, the testimony revealed that the father was rarely employed prior to October 1999, and when he was employed, it was rarely for more than a few weeks. The respondent was extraordinarily vague as to his employment history, as well as with regard to anything else he may have done to provide for his daughter financially. The respondent testified that he occasionally brought diapers to the mother, or to his mother’s house. The record of the father’s efforts to provide responsibly for his child is underwhelming and despite his testimony that the provision of support is one of paramount importance to him, his actions beat the claim. The court finds that the respondent has not maintained substantial and continuous or repeated contact with his child as manifested by the payment of a fair and reasonable sum, according to his means.
Since Domestic Relations Law requires that the father must prove both prongs, that is, the payment of support and either substantial and continuous contact with either the child or the person having custody of the child, the court could end its inquiry here. The determination that the consent of an unwed father in an adoption proceeding is not necessary is a process that requires careful deliberation, however, and should not be undertaken lightly. The court will therefore continue its examination of this father’s efforts with regard to his child.
Domestic Relations Law requires that a father establish either a pattern of visiting his child at least monthly when physically and financially able to do so, and not having been prevented from doing so by the person having custody of the child, or, that he has had regular communication with the child, or with the person having custody of the child, when he is physically and financially unable to visit the child or prevented from doing so by the person having lawful custody of the child. In the relevant time period, September 5, 2000 until March 5, 2001, the respondent father was incarcerated.
It is the respondent’s testimony that he believed he was to have no contact whatsoever with his daughter, whether by mail, telephone, or otherwise, while he was incarcerated, pursuant to court order. The order in question was issued by the Oswego County Family Court subsequent to the filing of a petition for visitation brought by the paternal grandparents. The order, in pertinent part, prohibits the petitioners, who were the paternal grandparents, from transporting their grandchild to any correctional facility for the purpose of visiting with her biological father, and further orders that the subject child is not to have telephone contact with her biological father while he is incarcerated.
Although the court references the respondent father, it did so only within the parameters of the grandparents’ visitation, and only insofar as the child is concerned. The order neither directs the nonparty father to do something, nor does it prohibit him from taking some certain action. As the issue of the father’s exercise of his visitation rights was not before the court, the order does not address it. The attorney who represented the grandparents on their petition for visitation in May 2000 testified at the hearing in the instant matter. The respondent father testified that he learned from his parents that he was to have no contact with his daughter, of any kind.
The respondent testified that he had no contact with his daughter either directly, or indirectly, after May 9, 2000. However, he also testified having sent two letters to the mother, one in January 2000, and the second in August 2000. Both letters are outside the relevant time period; even if they were not, however, two letters, seven months apart, do not rise to the level of substantial and continuous or repeated contact that is demanded by Domestic Relations Law.
The respondent has also failed to establish by clear and convincing evidence that he maintained substantial and continuous or repeated contact in the form of regular communication with the child, or with the person having lawful custody of the child. As stated above, the respondent may not rely on the fact of his incarceration as an excuse for not having maintained contact. Nor is the subjective intent of the father, whether expressed or otherwise, unsupported by acts specified in Domestic Relations Law, a factor that may preclude a court’s findings that a father has failed to maintain the required substantial and continuous contact with his child. The court notes that while incarcerated, the respondent father himself applied to have his child support obligation reduced. The respondent father maintains that he was under the belief he could not have contact of any kind with his daughter. He did not, however, make any attempt to petition the Family Court to have contact with the child reinstated, or permitted on a limited basis. The standard in petitions for the adoption of a child where it is alleged that the consent of the natural father is not required is no longer a flicker of interest.
The respondent father has not met his burden of clear and convincing evidence that he has maintained the requisite contact as set forth in Domestic Relations Law. The court therefore finds that the consent of the respondent father herein is not required for the adoption of the subject child. Accordingly, further proceedings on the adoption petition will be scheduled by the court and the petitioners will be notified of their appearance date. By order to show cause, the court previously ordered that all rights of visitation of the respondent be suspended until further order of the court. In accordance with the court’s findings in the instant matter, the petitioners’ counsel is hereby ordered to prepare an order permanently revoking all rights of visitation for the respondent.
It is easy to bear a child but being a parent is another story. Time for the kids and financial obligations are just a few of the things that a parent must fulfill. If you want to pursue a legal action against a negligent parent, consult the Suffolk County Child Support Attorney together with the Suffolk County Abuse and Neglect Lawyer. Stephen Bilkis and Associates can also provide a Suffolk County Child Custody Attorney to help you in court.