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Court Discusses the Rights of a Non-Marital Parent


On October 15, 1999, a child was born between the petitioner mother and respondent father. The respondent father acknowledged his paternity and his name was placed on child’s birth certificate. A New York Family Lawyer said the respondent visited regularly and contributed to the child’s support for 18 months. However, the parties never married or lived together because respondent has a family of his own. Accordingly, in the spring 2001, the parties’ relationship ended, although respondent continued to call the petitioner to discuss the child during the months that followed. During the years that follow, respondent father did not visit nor give support to the child.

The mother then met and married her current husband. The mother moved out of her apartment but submitted a change of address notification form to the United States Post Office. She changed her home telephone number but kept the same cell phone number, the same job, the same work address and the same telephone number at work. The mother notified her landlord about her move.

Thereafter, the respondent father received a notice from the petitioner mother’s intent for stepparent adoption. Respondent father filed a petition seeking visitation rights and opposed the adoption. In his petition, respondent alleged that he did everything for the child. On 2006, the petitioner mother and her husband filed a stepparent adoption.

During the hearing, the respondent father asserted that he never evinced an intent to forgo his parental rights and responsibilities. He insisted that the mother deliberately thwarted his efforts to maintain a relationship with the child by relocating, changing her home telephone number, returning his checks for child support and instructing family members and friends not to disclose her whereabouts. A Nassau County Family Lawyer said he believed that these facts, coupled with the efforts that he made to maintain contact, including the filing of a visitation petition prior to the filing of the adoption petition, satisfy the statutory requirements and establish that his consent is required before the child can be adopted.

The court was not convinced.

The Court said that the rights of non-marital parents stems from the principle that the father has a commitment to the responsibilities of parenthood by coming forward to participate in the rearing of his child thus his interest in personal contact with his child acquires substantial protection under the due process clause. In the instant case, the subject child and respondent father have only a “potential relationship.” A Nassau Child Support Lawyer said the child has always been in the sole custody of the mother and the proposed adoption would give legal recognition to a family unit that has been in existence for six years. Respondent has never had, and does not even now seek, custody of the child. He has not seen his son since he was an infant. His son does not know who he is.

Under the Domestic Relations Law, the consent of a non-marital father is necessary only if such father shall have maintained substantial and continuous or repeated contact with the child. It is well-settled that a parent does not satisfy the threshold statutory criteria and retain the right to veto the adoption of his child where, as here, he visits and pays support during the child’s infancy and then does neither during the years that follow. He did not even file any action to gain child custody.

The Court concluded that the actions taken by respondent father were insufficient to preclude a finding of abandonment. The Court rejected respondent father’s claim that the mother thwarted his efforts to maintain contact and pay child support. Where, as here, petitioner established that there was an absence of parental contact for more than six months, the burden of proof shifts to the respondent to present evidence that would rebut the inference of abandonment.

Thus, respondent father’s petition for visitation rights was denied and his opposition to adoption was dismissed.

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