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In re: Custody /Visitation of Beverly

April 26, 2016

The biological mother (petitioner) Beverly L. surrendered her parental rights of her 2 daughters Kendall and Brooke, and her son Zachary. She signed a Judicial Conditional Surrender reserving the right to visit her children and has done so many times.

The mother filed 2 different orders to show cause to obtain custody of her children due to a failed adoption by the respondent. The mother tells several disturbing stories where both of her daughters were sexually abused by two different men. One child was abused by the adoptive father, the other child was abused by an unrelated third party. The boy was reported bullied in the adoptive home.

The adoptive mother moved to dismiss the action. The court granted the motion.

The adoptive father is currently in prison after admitting to sexually abusing Kendall for over one year. Other charges regarding sexual abuse are still pending. The biological mom also reports that their son was choked and had a knife pulled on him at his adoptive home.

The older child (Brooke) was also abused by a third party while in the care of the adoptive mother. Kendall was dating the brother of the abuser. The adoptive mother sought a protective order to ensure the perpetrator stayed away.

The court calls adoption a fortress that has been created to be nearly impossible to penetrate. Pursuant to NY Domestic Relations Law 117 [1][a], once adopted, the biological mother is completely relieved of any rights or responsibilities regarding the child. Legal adoption is considered irrevocable (Matter of Ricky Ralph, M. 56 N.Y. 2d 77).

The courts will rarely disrupt an adoption, regardless of whether the parental rights have been surrendered (Matter of Tiffany 171 Misc. 2nd 786, 656 N.Y.S. 2d 79). If the biological parents could easily seek custody, it would undermine the stability for the children. Therefore, courts are very careful to protect the adoptive relationship from uncertainty (Tiffany H., 171 Misc. 2d 791).

Courts have reached different decisions however where the biological parental rights have been surrendered as to standing and custody. In Tiffany, the court said it was contrary to public policy to grant standing to a biological mother whose parental rights were terminated. If biological parents were allowed standing to file for custody for an adopted child, and overcome DRL 144 (Order for Adoption) the finality of adoptions would be undermined.

Both mothers rely on a case called Matter of Rasheed A. in support of their positions. In that case, the court said that the biological mother (who had terminated parental rights) had proper standing to seek guardianship over her son. The only other option was to place the child in a locked facility (for mental illness). The court developed a found prong test, where the parties either consented or need to prove extraordinary circumstances. In addition, they needed to show 1) compelling circumstances 2) show that the reason the child was in foster care had been eliminated.

After surrendering her parental rights, the biological mother became a legal stranger to her children (Domestic Relations 117). Between a parent and a nonparent, a parent has a superior right to custody, unless the nonparent has established that the parent has relinquished it due to surrender, abandonment, unfitness, or extraordinary circumstances (Matter of Male Infant L. 61 NY 2d 420).

Child custody battles can be extremely stressful. It is important to seek legal guidance to ensure the best possible outcome. Call Stephen Bilkis and Associates for guidance and a free consultation. We have office locations throughout New York including locations in Manhattan, the Bronx, Brooklyn, Queens, Staten Island, Nassau County, Suffolk County and Westchester County. Call us today at 1-800-NYNYLAW.

 

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