New York Family Law Blog
The mother of the infant in this adoption proceeding commenced a writ of habeas corpus in Nassau County Supreme Court by a petition dated May 10, 1976 and returnable May 26, 1976. The Supreme Court, on the consent of all parties, treated the habeas corpus as an application by the mother to revoke her consent to the adoption of the child and referred the entire matter to this court where all prior proceedings had occurred and where adoption proceedings were then pending. The decision also directed the mother to serve a supplemental verified petition setting forth in detail ‘the basis upon which she claims she was unduly influenced and pressured to give her consent to the adoption.’
In early 1975, the mother, then almost 21 years old and a college student in Florida, became pregnant by an unidentified person other than her present husband, also a college student in Florida, whom she married in August of 1975. In July of that year, in anticipation of her marriage, she first sought an abortion but was informed that her pregnancy had progressed too far. She admitted that her husband would not have married her unless she had agreed to surrender the child for adoption since he did not wish to care for a child not his own and she agreed it was unfair to impose this upon him.
He was referred to an attorney in Miami, Florida and, through him, put in contact with a New York attorney who has represented the adoptive parents in this proceeding. On November 15, 1975, she flew to New York and was met at the airport by a nurse’s aide and housekeeper known to the adoptive parents but who told her she was acting on behalf of the New York attorney. She remained at the housekeeper’s home in Brooklyn until November 26 when the infant was born. During her first meeting with the New York attorney, she expressed at least two motives for proceeding with the adoption–her desire to devote more time to college and her fear of being unable to care for the child because of her relative youth.
Following the birth of the child, the mother was discharged by the hospital on December 1, the same day the baby was taken to the adoptive parents’ home by the housekeeper. On December 4, both the mother and her husband, he having in the meantime arrived from Florida, met with the attorney. In a telephone conversation with the attorney two days previously, the mother testified that she asked what would happen if she requested the return of the child. The attorney is alleged to have responded that the adoptive parents would do everything they could in an effort to keep the baby and would sue her for all the money that had been paid on her behalf.
During the December 4 meeting, the mother claims to have requested the return of the child and the attorney is alleged to have responded that she would have to pay $8,000 in one week before the baby would be returned to her. The attorney denies that he demanded any sum of money from her but admits indicating that the adoptive parents were emotionally and financially involved, and that a considerable amount of money had been paid up to this point, to which the mother is alleged to have responded: ‘Money is no problem. My husband has plenty of it’ and that she thought she could raise $5,000, to which the attorney made no comment. In addition, he denies threatening to sue her on behalf of the adoptive parents for any sums of money received by her if she refused to go ahead with the adoption. The attorney pictures her as unhappy and primarily concerned about the identity of the adoptive parents. Although she stressed again and again her desire to meet the adoptive parents, the attorney declined, replying that it was unusual to arrange such a meeting and not in the best interests of the parties. Her scheduled appearance before the surrogate on that date was thereupon cancelled at her request and adjourned to the following day.
On December 5, when she again brought up the question of her desire to meet the adoptive parents, the attorney relented and summoned the adoptive father to his office. After initially meeting in the attorney’s office, the mother, her husband and the adoptive father retired to a coffee shop where they conferred further. In her supplemental petition, the mother states that the adoptive father told her that he and his wife had already taken the baby home and that his wife was about to ‘pass out’ at the thought that she could not keep the baby. He assured her that the baby would receive good care and also remarked that the mother could always have more children and it would make them very happy by her agreeing to the adoption. He is also alleged to have promised to let her see the child every year. She admitted that after this discussion she was convinced the adoptive parents could provide a better home and more advantages for the child than she and her husband, which was partly the reason for her conviction to go ahead. When asked to characterize the meeting, she concluded–‘He persuaded me to give the baby up.’ She returned to the attorney’s office and from there to the court where she re-swore to Exhibit 8 (Affidavit of Natural Parent) and re-acknowledged Exhibit 7 (Agreement of Adoption and Irrevocable Consent) before the surrogate.
The mother seeks a dismissal of the adoption proceeding on the grounds that (1) jurisdiction was defective because the adoptive parents reside in Suffolk County and not in Nassau County where the proceeding is pending; (2) the consent to adoption was induced by fraud, duress and coercion; (3) notice of the adoption to the unwed father was not given; and (4) the attorney for the respondent acted unlawfully by ‘placing out’ the infant in violation of Social Services Law ยง 374.
An adoption proceeding is required to be commenced in the county where the adoptive parents reside or, if they are non-residents of the state, in the county where the child resides. The adoptive parents here claim two residences–one in Suffolk County where they reside most of the year and the other in Lido Beach, Nassau County, which is their summer and weekend residence. The residency requirement in a particular county may relate to venue which is not jurisdictional or it may be a jurisdictional requirement as in a probate proceeding. If it is merely a venue statute then residence in more than one county is immaterial since for venue purposes a person ‘resident in more than one county shall be deemed a resident of each such county’. If the requirement is jurisdictional and the term ‘reside’ is synonymous with domicile, then the proceeding has been brought in the wrong county, since a person can have but one domicile at a given time. Such words are often used ‘even in our statutes, as if they had the same meaning; but they are not identical terms, for a person may have two places of ‘residence,’ as in the city and country, but only one ‘domicile”.
The traditional problem of jurisdiction as it relates to creation of the adoption status arises not over residence in a particular county but residence, or sometimes domicile, in a particular state. Residence or domicile in a particular state is said to be important because adoption effects a change of status of the parties, which in turn is governed by the law of the individual’s domicile. Some conflict-of-law commentators urge that it is only the common domicile of both the adoptive parents and the child that can effectively act upon their status. This has been criticized as unnecessarily harsh since there might not be adoptive parents available at the child’s domicile, thus depriving the child of the benefits of adoption.
The first general adoption enactments in New York required that the adoptive parents be residents of the county in which the adoption proceeding was commenced but in 1916 this was amended by permitting nonresidents of the state to adopt a child residing in the county which decreed the adoption. In the intervening period, one decision, in a non-adversary proceeding and without citation of authority, referred to the county of residence as being jurisdictional.
The primary purpose of adoption is to promote the welfare of the child. From a sociological viewpoint, however, no adoption should be granted without a careful study and evaluation of the child and the adoptive parents or without a probationary period during which the relationship can be observed before it is finalized. This study and evaluation is ‘more important than anyone’s domicile, more important than any mechanical or legal connection between any person and any state. Moreover, adoption agencies themselves have viewed the residence or domicile of either the adoptive parents or child as immaterial but ‘territorially the placement of children in homes should be restricted to distances within the ready supervision of the organization legally responsible for the child’.
All of the suggested safeguards have been observed in this case. A study of the child and the adoptive parents has been conducted and a probationary period required. In addition, both of the residences are within close proximity to this court. However, even this last consideration has been held unimportant since it is not the physical ‘home’ as such that necessarily needs to be studied but the character and background of the adoptive parents which should most concern the court. In light of the purposes to be served by the adoption statute, the term ‘reside’ must be held to refer merely to venue.
To satisfy the traditional requirements of jurisdiction to create the status of adoption, the adoption must be decreed either by the state of the child’s domicile or that of the adoptive parents’. Placing those traditional requirements into proper context with the requirement of residence in a particular county, the statute should be interpolated to read: When the adoptive parents are domiciliaries of this state, the proceeding shall be commenced in the county of their residence; when they are nondomiciliaries and the child is a domiciliary, then in the county where the child resides. Since the adoptive parents are domiciliaries of New York and maintain a residence in Nassau County, they have satisfied both the traditional concept of jurisdiction and the venue requirements of the statute. Whether all requirements of domicile in adoptions should be dispensed with as some authorities recommend need not be decided now. Under the facts here, the court has jurisdiction to grant the order of adoption.
Fraud, duress and coercion–The allegations of fraud and duress in the supplemental petition filed in this court by direction of the supreme court are in summary that: (a) she was depressed and fearful of not being able to take care of her child in a strange city without friends or relations; (b) the housekeeper supervised and controlled her every movement; (c) the attorney demanded $8,000 from her for the return of the child; (d) her husband threatened to leave her and return to his native country, Iran; (e) the adoptive father promised to permit her to see the child every year; and (f) all of her living and transportation expenses were being paid by the adoptive parents.
While the record undoubtedly establishes that the mother was ‘unhappy’ and had misgivings about consenting to the adoption, there is no evidence of any fraud, duress or coercion which would vitiate the irrevocable consent. The pivotal incident in the chain of occurrences which establishes her completely voluntary acquiescence to the adoption occurred in her meeting with the adoptive father.
While there may be some difficulty in determining whether a fee charged by a professional man is for his professional services or for the placement itself, nevertheless a fee that is clearly excessive and is not related to the lawyer’s actual services is a violation of the Code of Professional Responsibility (DR2–106; Podolski, Abolishing Baby Buying: Limiting Independent Adoption Placement, Family Law Quarterly, 547–552). In addition, the attorney here has admitted that part of his fee was forwarded to the attorney in Florida. It does not appear that the Florida attorney performed any legal services as such other than possibly giving social ‘counsel’ to the mother who was then expecting her child. The Code of Professional Responsibility also prohibits the division of fees among lawyers where the division is not in proportion to the work performed and responsibility assumed (DR 2–107). Any clearly excessive fee or improper division of fees should be referred to the proper authorities for investigation and possible criminal or disciplinary proceedings.
In beginning its implementation of its special rule, the attorney here and the adoptive parents, prior to the finalization of the adoption, are directed to file verified statements setting forth the total compensation paid to the attorney. The attorney, in addition, is to verify the amounts paid or forwarded to the Florida attorney. A visit by the adoption caseworker to the Suffolk County home will also be required.
The application of the mother to revoke her consent and for the return of the custody of the child is dismissed.