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Right of Biological Mother to Seek Custody of Children She Surrendered – Beverly L. v. James H. (In re Custody/Visitation Proceeding), 2016 NY Slip Op 26243 (N.Y. Fam. Ct. 2016)


The issue before the court is whether a parent who adopted out her children had the right to seek custody of them upon learning that the children were being sexually abused by the adoptive father.

The petitioner voluntarily surrendered her parental rights to her three children, 2 daughters and a son.  As part of the post-surrender agreement, the mother retained the right to visit with the children, and she did so regularly. The three children were subsequently adopted.  A few years after the adoption, Biological Mother found out that the children were not living in a safe environment.  One of her daughters was being sexually abused by Adoptive Father.  The other daughter was being sexually abused by an unrelated person.  The son was being bullied in the adoptive home.  In response, Biological Mother sought custody of the children.  Adoptive Father admitted that he sexually abused one of the daughters and was in jail. Adoptive Mother filed a motion opposing Biological Mother’s petition, arguing that she had no standing to file for custody.  Adoptive Mother also stated that she wanted to keep the children and that she was divorcing the adoptive father. In addition, the attorney representing the children opposed Biological Mother’s petition for custody.

The question before the court is whether a biological mother who previously surrendered her children has standing to bring an Article 6 custody petition against the children’s adoptive parents in a case where the adoptive father has admitted to sexually abusing one of the children.

Under Article 6 of the Family Court Act, a parent, grandparent, or other person with a significant relationship with a child can file a petition for custody.  The problem with applying this rule in the case of a biological parent who adopted out her children is that once parental rights are terminated, the law views the biological parent as essentially a stranger. All of the legal protections afforded the parent-child relationships are gone.  This legal fact is important and is critical to ensuring the finality of adoption.  In Beverly L. the fact that as part of the agreement to surrender her kids Biological Mother was allowed to maintain a relationship with them did not change the fact that she did indeed give up her legal rights as a parent.

The court noted that in extraordinary circumstances it has the discretion to allow biological parents of adopted out children to petition for custody.  Examples of such extraordinary circumstances include where the adoptive parent becomes incarcerated, becomes very ill or disabled, or dies.  The court will also consider circumstances extraordinary if the adoptive parent abandons, abuses, or neglects the children, as the adoptive parent would have essentially relinquished his or her parental rights.

Despite the fact that the children have suffered while living in the adoptive home, the court still did not find that Biological Mother had standing to step in and petition the court for custody.  The court pointed out that Adoptive Father is out of the house and Adoptive Mother claims that she plans to divorce him.  Further,  Adoptive Mother wants to keep the children and is in counseling with them.  While the children would like to spend more time with Biological Mother, they also want to continue to live with Adoptive Mother.  The court concluded that while the circumstances in Beverly L. are far from ideal, because of Adoptive Mother’s involvement, because of her standing as the legal parent, and because of her efforts to keep the family together, extraordinary circumstances do not exist such that Biological Mother would have standing to seek custody.

Adoption is meant to be a final act that provides stability to children who were in an unstable situation.  When children are adopted the legal relationship that existed with the biological parents is virtually gone.  For this reason, the courts do not take the act of terminating parental rights lightly.  It is practically impossible for biological parents to recapture any legal rights to their children once they have surrendered them or once they are terminated.

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