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Court Decides Two Cases Involving Family Court Act 651 (b)


Pursuant to the Family Court Act § 651(b) and Domestic Relations Law § 72, two petitions are now before the court.

A New York Family Lawyer said the first petition filed on 5 December 2008 by A (birth father) seeks custody of and/or visitation with the child B (D.O.B. 04/01/2004).

The second petition filed on 5 December 2008 by C, mother of B, seeks custody of and/or visitation with the child, C.

For reasons set forth below, however, the Court grants the motion filed by the respondents, Mr. and Mrs. Anonymous, and dismisses each of these petitions.

On 3 April 2004, the child B was validly surrendered by her birth mother to Family Focus Adoption Services, Inc., for the purposes of adoption. On 3 December 2004, the pre-adoptive parents, the respondents, Mr. and Mrs. Anonymous, filed a petition for adoption of C in Queens County Family Court. On 30 June 2006, the Queens County Family Court dismissed the adoption petition, finding that the birth father’s consent to the adoption was necessary, and the birth mother’s surrender of the child was invalid. That decision was upheld by the Appellate Division, Second Department.

On 3 June 2008, the New York State Court of Appeals reversed the decision of the Queens County Family Court, ruling that A was a “notice” father, not a “consent” father, with limited legal rights, and that the birth mother’s surrender of the child was valid.

A New York Child Custody Lawyer said the Court of Appeals reinstated the adoption petition, remitting the matter to the Queens Family Court for further proceedings. The petitioner, A, filed for certiorari in the United States Supreme Court requesting the reversal of the decision of the New York State Court of Appeals. On 1 December 2008, however, his writ of certiorari was denied.

A Bronx Family Lawyer said the provisions of DRL § 111-a afforded A the right to notice of the adoption proceeding and an opportunity to be heard as to the best interests of the child. On 22 December 2008, this Court held a hearing pursuant to DRL § 111-a, in which A testified, called his mother, C. as a witness, and was provided the opportunity to present evidence relevant to the best interests of the child. On 22 December 2008 and on 3 January 2009, counsel for A submitted two briefs on his behalf. At that time, the Court held in abeyance a decision on the instant custody/visitation petitions.

On 2 February 2009, the Court determined that adoption of B by the respondents, Mr. and Mrs. Anonymous, was in the best interests of the child. In making that determination, the Court carefully considered the testimony of the birth father, A and his mother, B, the documentary evidence submitted by the pre-adoptive parents in the adoption proceeding, and the two briefs submitted by counsel for A. In spite of numerous attempts by his counsel to focus him on the “best interests” of C, A barely acknowledged the child’s interests as separate from his own and never addressed them. At no point did A focus on the fact that C has been with the pre-adoptive parents since birth, almost five years. He never discussed the impact on her if she were to be removed from the only home she has ever known, one in which she is clearly loved and nurtured. Nor did he address the fact that she has had no contact with him for more than two years, and had seen him only a limited number of times prior to that, and only under the supervision of a mental health professional and in the presence of her pre-adoptive mother. A testified that he had visited with B about “50 percent” of the time during the two to three-year period that the court ordered supervised visitation at no cost to him. After the court ordered that A pay the supervisor’s fees, he did not visit at all. Further, he exhibited no sensitivity to or understanding of C, nor did he ever discuss or indicate any interest in her needs, her strengths and weaknesses, her personality or her life. He did not state what inquiries he had made, if any, as to her emotional and intellectual development. He never addressed his interest in or his ability to meet B’s physical, emotional and psychological needs, nor did he state any efforts he would make to do so.

C, the mother, also testified and revealed that they have only visited B on three occasions in 2007, said she believed that it was unlikely that B would recognize her or know who she was and did not state that she sent any cards, letters, gifts, to the child, or made any independent effort to have contact with or reach out to C.

C had little to add other than to say that it was “unfair” to her son if the court proceeded with the adoption. The court found that the pre-adoptive parents, Mr. and Mrs. Anonymous, created a loving, stimulating and supportive environment and encouraged B to grow, learn, and develop. She has been cherished and loved by Mr. and Mrs. Anonymous, as well as their extended family. They have protected B from the stresses of four years of litigation, and responded to and cared for her with great sensitivity, thoughtfulness and caring. A final order of adoption of B by Mr. and Mrs. Anonymous was issued by this Court on 9 February 2009.

After careful examination and consideration, the court dismisses the petitions of A and C.

In Matter of Lynda D v Stacy C, it was held that the information before the court enables it to undertake a comprehensive independent review’ of a custody or visitation issue, an evidentiary hearing is not required. The court has carefully examined the record of the case and submits to this precedent. The court may further decide the matter upon pleadings, papers and admissions to the extent that no triable issues of facts are raised.

The court finds that the record before it has ample information to determine the threshold questions whether either petitioner can establish “extraordinary circumstances” as to the issue of custody, and whether either petitioner has “standing” to pursue his/her petition for visitation. The record contains information that is more than sufficient to afford a full, independent and comprehensive review of all relevant facts and circumstances as to those issues. Accordingly, this Court renders decisions on the instant custody/visitation petitions, filed by A and C, respectively, based on the record before it, and grants respondent adoptive parents’ motion to dismiss both petitions based on lack of standing.

The petition filed by A asks this Court to award him custody of and/or visitation with B, whose adoption is now final. This Court finds that A lacks standing to pursue the custody/visitation petition. Upon the finalization of B’s adoption, A’s parental rights ceased, and he has no legal rights to the custody of or visitation with the adopted child B. DRL § 117 (1) (a) delineates the effect of the adoption:

A Bronx Custody Lawyer said that after the making of an order of adoption the birth parents of the adoptive child shall be relieved of all parental duties toward and of all responsibilities for and shall have no rights over such adoptive child or to his property by descent or succession, except as hereinafter stated.

Here, A seeks an award of custody of B or, as an alternative, court-ordered “liberal and unsupervised visitation with the child because there is no reason why the contacts with the birth family should be ended here. However, the Court finds many compelling reasons to deny the relief requested in his petition. The Court’s grant of A’s request would violate public policy and contravene judicial precedent and the principles of preserving the finality of an adoption, protecting the adoptive relationship from uncertainty and disruption, and promoting stability and permanence in the adoptive relationship.

The New York’s Court of Appeals states that, although adoptive parents are free, at their election, to permit contacts between the adopted child and the child’s biological parent, to judicially require such contacts arguably may be seen as threatening the integrity of the adoptive family unit.

Finally, A asserts that DRL § 72, which authorizes a grandparent or grandparents to seek custody/visitation rights with a grandchild, also applies to him, as “a birth father whose parental rights have been terminated. A’s argument that DRL § 72 applies to him as a father whose rights are terminated is a spurious claim at best.

Moreover, A is not a father “whose parental rights have been terminated.” The Court of Appeals made clear in its decision in this case that A is a “notice father,” who has the limited right to notice of the adoption proceeding for the “sole purpose” of presenting “evidence to the court relevant to the best interests of the child(DRL § 111-a [3]).

A is not a “consent father” with the legal right to withhold consent to B’s adoption (DRL § 111). Moreover, A’s limited legal rights as a “notice father” were satisfied at the 22 December 2008 hearing before this Court pursuant to DRL § 111-a. Even if A qualified as a consent father whose parental rights were terminated involuntarily, New York’s appellate courts have ruled uniformly that the family courts do not have authority to order contact between the adopted child and a birth parent whose rights have been terminated.

New York State’s legislature has created one exception to this general bar against court-ordered post adoption contact in termination cases; however, it applies only to parents who voluntarily have surrendered their rights to the child. Only these parents may “reserve the right to post adoption visitation and communication. In the instant case, the birth mother of B was the consent parent with full legal rights, who surrendered the child for adoption voluntarily. A’s reliance now on DRL § 72 in support of the instant custody/ visitation petition is entirely without merit.

The court finds that the adoption of B has relieved A of all parental rights and responsibilities. He is now redounded to the status of a legal stranger.

C, on the other hand, lacks standing to obtain custody of the child pursuant to FCA Article 6 or DRL § 72 (2).

C urges this Court to apply the standard of the “best interests of the child and award her custody of B pursuant to the provisions of DRL § 72 or FCA Article 6.

Pursuant to Article 6 and as emphasized in Matter of Peter, a grandparent has no “pre-emptive right” to custody of the child. Neither does she have a special statutory right to a “best interests” hearing. The grandparent first must prove the existence of “extraordinary circumstances- the relinquishment of rights by the legal parent, here the adoptive parents, “due to surrender, abandonment, persistent neglect, unfitness, or similar extraordinary circumstances.”

One of the most crucial elements of a healthy childhood is the availability of a stable home in which each family member has a secure and definite place. In addition to the stake of the adopted child, the adoptive family is unquestionably adversely affected by any lingering uncertainty about the permanence of adoption. Lastly, society has an independent interest in the finality of adoptions, since the adoptive relationship implicates many legal rights of the parties, including the right to inherit and the right to receive certain governmental benefits.

Accordingly, the standing requirements of DRL § 72 must be applied strictly, particularly in the context of an adoption by non-family members, where no grandparent-grandchild relationship exists, where the grandparent has failed to make attempts to foster a relationship, despite opportunities to do so, and where the adoptive parents object to the grandparent’s proposed visitations as a serious hindrance to the integrity of their family unit and the finality of the child’s adoption, and as detrimental to the best interests of the child.

In the instant case, continuing involvement in protracted litigation, which in this case has extended throughout the entire life of this five year old child, poses imminent risk to the child’s right to a stable, permanent family life where her physical, psychological, and social well-being are secure and can continue to be nourished and developed. Clearly, the quest for court-ordered intervention into the life of this new adoptive family hinders the integrity of this adoptive family unit and is contrary to the best interests of the child.

In review of all relevant facts and circumstances, in particular, the lack of any relationship whatsoever between C. and the adopted child, and the sound objections of the adoptive parents to the proposed visitation on the grounds of harm to the integrity of their adoptive family unit and the finality of the adoption, this Court finds no basis in law or equity to confer standing upon C to seek court-ordered visitation with the adopted child B.

The court, thereby, grants the motion filed by the adoptive parents and dismisses the custody/visitation petition filed by C, and the custody/visitation petition, filed by A and denies the applications in their entirety.

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