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Matter of a Proceeding for Custody and to Surrender and Terminate Parental Rights. Hope, B. Petitioner v. Avery, G. Respondent


Jeffery Kaplan, Esq. of Levine & Kaplan for Petitioner

Ari Gourvitz, Esq. of Gourvitz and Grourvitz for Respondent

The parents jointly sought child custody to the Petitioner mother, and voluntary termination and surrender of the father’s parental rights. At the time of the hearing the child was one year old.

The father claims that he has satisfied his financial obligation by prepaying 150K in child support. The court reviewed the law and determined that the family court has no jurisdiction to grant the termination of rights in this type of case, and the court denies relief. The court grants the mother sole custody.

In June, the mother Petitioner of the child and Respondent father filed a joint petition requesting an order of custody be entered in favor of the mother for their son, Paul B. The Petitioner requested the termination of parental rights for the Respondent.

Before ruling on this unusual petition, the court asked that the parties give their personal and employment history, as well as educational background and the reasons they are requesting this type of relief. Bother parties submitted an affidavit. The court requested a memorandum of law establishing that the court has the power to terminate parental rights.

The parties met at Dartmouth College and were never married. After graduation, the Petitioner took a marketing job in New York, and the Respondent took a job in Texas. They maintained a long-distance relationship. The Petitioner however became unexpectedly pregnant and the relationship deteriorated. The father requested that the Petitioner seek an abortion. The father alleged extreme emotional distress.

He developed numerous health problems as a result of the stress, and needed antidepressants and antianxiety medication. The Respondent contends that he was subjected to defamation, threats, harassment and that the Petitioner intentionally interfered with his business relationships.

When Paul was born, the Petitioner requested that the Respondent terminate parental rights. In the request, the attorney for the Petitioner stated that the child support would continue until the child was 18 years old and the Respondent would have to endure many possible support modifications depending on the father’s income.

The parties entered into an Irrevocable Informal Agreement. The document provides that the mother is to file a Petition to terminate parental rights in her state of New York and the Respondent is to deposit $150K in a trust for the child.

While this is pending, the Petitioner is to receive a monthly payment from the trust for child support. Once the proceeding is completed, the mother will receive the balance of the $150K. The Respondent’s rights will then be irrevocably terminated.

The document said that if the New York court doesn’t grant the termination, the amount used by the mother for child support is be to credited to the father and the remainder of the money will be returned to the respondent.

The Texas court issued an order declaring that the Respondent was the child’s father.

The Petitioner contends that the termination is best for everyone involved. The family has expressed no desire to become involved in the child’s life.

The father says that his rights should be terminated because his role would be marginalized. It would spare the child the “irrevocable conflict” of the situation. The father said he could not regain his footing in life until he was completely free from the Petitioner.

In this petition, the parties acknowledge that this is an unusual request absent the child being in foster care.

The parties didn’t cite any applicable New York law, but did use similar New York family law cases. The parties cited Aida, G. v. Carlos, P. (163 Misc.2d 423 [Fam. Ct., Queens Co. 1994], where the relief was denied. In the Matter of Shawnda R (17 Misc. 3d 437, [Family Court, Kings County 2007] the court denied the petition based on what was best for the child. The parties also cited Bennet v. Jeffery’s 40 NY2d 543 [1976], which wasn’t on point.

Social Services Law 384 was also cited, stating that in this case a relative is permitted to file a petition for the termination of parental rights.

The parties in that case however, stated that the child was destitute. At the end of the proceedings, guardianship must be committed to an authorized agency.

The court says that there are no provisions in either the Domestic Relations Law or in the Family Court Act which allows for voluntary surrender of parental rights. The family court only possesses powers given by statute (Martin v. Martin 127 AD2d 266 [2nd Department 1987].

There are three provisions for surrendering parental rights.

Under SSL 383, a parent with a child in foster care can file a document called a “surrender.” If accepted the guardianship is assigned to an agency. This section however doesn’t apply because the child isn’t in foster care.

Under section 384, in specific circumstances a parent may surrender their parental rights to a child that is not in foster care. However, the child and guardianship must still be assigned to an agency.

Under SSL 384-b, parental rights can be surrendered if it is determined that the child is destitute or dependent, but this child is neither.

The court discusses DRL 117 (1)(a). This provides that after an adoption the birth parents shall be relieved of all responsibilities and will have no rights over the adopted child. This doesn’t apply to the current case. However, if Paul is ever adopted in the future, the Respondent may be relieved of his parental responsibilities at that time.

The court says that because there are no statutory laws to rely on, the court looks to case law. Currently there is no case law that applies to this set of circumstances.

The court concluded that it is unclear if this would be in the child’s best interests. Further, once the father grows older, he may change his mind and want a relationship with the child. Also, if the mother passed away, the child would be orphaned.

The court grants sole legal custody and physical custody to the Petitioner.

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