Published on:

Court Discusses Mistake of Law vs Mistake of Fact in Custody Proceeding


This proceeding concerns the petition of an Adoption Service for commitment of a minor to its custody under Section 384 of the Social Services Law. Petitioner commenced this proceeding sometime in December 1972. A New York Family Lawyer said the natural mother of the infant was served and defaults in this proceeding. The natural father was also named as a respondent at the direction of the court and was served with citation. In compliance with a Court’s ruling, a hearing was and several months were required for the submission of briefs. Under jurisprudence, an unwed father’s right to custody of his child cannot be terminated without the hearing requirements of due process of law. That case, in fact, involved an unwed father who had raised his children in his own home.

A New York Family lawyer said that the natural father, who lived out-of-wedlock with the natural mother for four months prior to the birth of this boy, has moved to dismiss the petition of the Adoption Service, on the ground that the petitioner failed to prove or plead that respondent father abandoned his infant son. The child was born out-of-wedlock and ten days after his birth, the natural mother voluntarily placed the child with the Commissioner of Social Services of the City of New York for temporary foster care. The father’s name does not appear on the birth certificate. The infant has remained in foster care with the same foster parents from November 1967 to this date. The infant believes that his foster family is his only family and has no knowledge or recall of his natural parents. At the time of the birth of this infant, respondent father was married to a woman other than the mother of this infant. Thereafter, respondent acknowledged paternity and agreed in writing that he would support his child. However, respondent’s salary has been insufficient to cover any support for many years and, in any event, he has made no such payments. The natural mother never contributed towards support. A New York Custody Lawyer said the court finds this long-term failure of support as evidence of abandonment as defined by Social Services Law § 371: “Abandoned child’ means a child who is abandoned or deserted in any place by both parents and left (c) without being visited or having payments made toward his support, for a period of at least six months, by his parent, guardian or other lawful custodian without good reason.’

A Staten Island Family Lawyer said a child never lived in the home of the natural parents, although the father claims that he objected to the natural mother’s refusal to bring the baby home. Curiously, respondent could not recall whether or not the natural mother actually resided with him after the birth. Respondent also testified that he did not inquire as to the whereabouts of the baby, although he claims to have visited the mother in the hospital during her confinement. In July 1968, the agency interviewed the father and, upon his insistence, permitted him to visit the child twice; once he was accompanied by the natural mother. Agency records of 1968 reflect that the father was desirous of custody of his child but that he had no plans or means to accomplish this purpose. Thus, the agency therefore determined on a plan for adoption.

Nevertheless, respondent continued regular child visitation between August 1968 and August 1969. Respondent testified that during these visits, the infant appeared confused and cried when removed from the arms of the foster parents. A Staten Island Custody Lawyer said these visits also revealed, as the father testified, a close and warm relationship between the infant and the foster parents. Between 1968 and 1970, the natural mother made sporadic visits with the child. The court recognizes that the agency was operating under concepts amounting to the absence of rights of fathers of out-of-wedlock children. Therefore, the agency dealt only with the natural mother, as the sole party with parental rights. The natural mother’s consent was thought necessary in order for the father to visit the infant. In 1970, the agency lost contact with the mother but later discovered that the natural mother had returned to her parents’ home in the Midwest and that the natural mother and father were no longer living together.

A said that in the end of 1971, the agency determined that the best interests of the child outweighed the father’s desire to visit the child and informed the father that the courtroom was the proper place to determine if the natural father had the right to further child visitation. Respondent father was told by petitioner to obtain an attorney if he sought to resume visits with the child. However, the father remained silent thereafter and never sought to enforce his legal rights except to appear as objectant to this proceeding brought by petitioner in 1972.

Respondent argues that petitioner never recognized the rights of the natural father enunciated in Stanley. The Court has determined that prior to 1972, the petitioning agency acted in legally acceptable fashion: with respect to children born out of wedlock, rights and responsibilities belonged to the natural mother and did not belong to the natural father. Only since 1972, did problems arise about the natural father’s right to block a commitment, adoption or placement with an agency for temporary foster care. The legal mistake of the agency, prior to 1972, under the novel doctrine, does not give the natural father an absolute right to custody of his child.

In October of 1972, two months before this proceeding was initiated by petitioner, respondent appeared at the agency and sought child visitation. Again the agency prevented the father from visiting his child on the grounds that the natural mother allegedly did not want the natural father to visit the child. Other grounds are more persuasive. If the unwed father has the right only to a hearing to determine the best interests of the child, then this father’s consent need not be a condition for commitment and this proceeding is not rendered defective because of this attempted visitation.

Since our statute speaks only of ‘abandonment’, a literal interpretation of it may collide with the infant’s constitutional right to a stable home unimpaired by the father’s objection to this commitment application. And so, the statutory ‘abandonment’ may be interpreted in a way that protects the infant’s constitutional rights. If, on the other hand, this unwed father has the same right to withhold his consent as the right of a married father, then by the very same reasoning he may be barred because the welfare of his then five-year-old child by that time would have been disserved by permitting a stranger to him to upset the stable home of the child from birth after years of non-visitation and non-support by the father. The mistake of law for several years by the agency does not detract from this child’s constitutional right to a stable and permanent home. A lapse of one and one-half years between the last visitation and the last attempt to visit, under these circumstances, supports the agency’s decision that resumption of visitation would be detrimental to the welfare of this child.

The mistake of law by the agency is no different from the mistake of fact by the agencies in other cases. The court therefore finds that this attempt to visit by respondent within the six month period preceding commencement of this proceeding does not disprove ‘abandonment’ within the meaning of 1(b) and (c) of Social Services Law § 384. If fault is to be found, some must be laid at the door of respondent who never sought legal representation as an indigent or otherwise, to enforce visitation, although he was advised to do so by petitioner; only after commencement of this proceeding, did the natural father retain counsel.

The court recognizes that this father never intended to give up his rights to be the father of the child. The Supreme Court in Rothstein remanded the case to the Supreme Court of Wisconsin for further consideration in light of Stanley ‘with due consideration for the fact that the child has apparently lived with the adoptive family for the intervening period of time.’ The court has fully considered the length of time that this child has spent with the same foster family and finds that the warm and loving relationship recognized by all parties, between the infant and his foster family with whom he has lived so long, is so important to this child that it becomes inimical to the welfare of this child to try to strengthen the natural parent-child relationship. Thus, the possibility that respondent could now care for the infant in his own home, when for such a long time he could not do so, does not justify establishment of the parent-child relationship.

The father’s consent to this commitment is dispensed with, since he is found to have abandoned his child and was a parent unable to care for this child for several years. The relief requested by petitioner is granted.

A child of tender age should not be abandoned as this is a crucial period. Here in Stephen Bilkis and Associates, our New York Family lawyers will advise you on how to enforce your right in court once abandonment takes place. Likewise, we also have our New York Child visitation attorneys who will help you pursue a case in court seeking visitation of your child.

Contact Information