What's happening
This bill updates laws regarding the rights and notification requirements for non-marital fathers in adoption and parental rights termination proceedings.
Why it matters
Clarifies and strengthens which non-marital fathers must be notified and whose consent is required in adoption and parental rights cases. making it more explicit that only those who have taken specific, timely legal or parental actions (such as establishing paternity, living with the child, or consistently supporting/communicating) are entitled to notice or can block an adoption.
Establishes clear deadlines and evidentiary standards for non-marital fathers to assert their rights. for example, requiring motions to intervene to be made within 30 days of notice and specifying what constitutes “substantial and continuous or repeated contact,” thus reducing legal ambiguity and potential delays in adoption and foster care proceedings.
Prevents individuals who fathered a child by certain sexual offenses from being entitled to notice or consent rights. closing loopholes that could give parental rights or notification privileges to men convicted of rape or similar crimes where the child was conceived as a result.
Creates a formal process for courts to determine whether a non-marital father’s consent is required. mandating a pre-hearing with defined burdens of proof, which helps ensure fairness but also streamlines the process for adoption agencies and families seeking permanency for children.
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Who cares
Headline styles
Clarify Adoption Rights for Fathers
Plain English, a few words. Used as the page title.
Sponsors
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History
- Referred to children and families
- Delivered to assembly
- Passed senateVote 62–0
- Ordered to third reading cal.2005
- Committee discharged and committed to rules
- Referred to children and families
Full text
5 pagesUnderlined is new[Struck] is removedOfficial text on nysenate.gov ↗
STATE OF NEW YORK
7888
IN SENATE
March 6, 2018
Introduced by Sen. AVELLA -- (at request of the Office of Court Administration) -- read twice and ordered printed, and when printed to be committed to the Committee on Children and Families
AN ACT to amend the domestic relations law and the social services law, in relation to non-marital fathers in adoption, surrender and termination of parental rights proceedings and consents to adoptions in family and surrogate's courts
The People of the State of New York, represented in Senate and Assembly, do enact as follows:
Section 1. Paragraphs (d) and (e) of subdivision 1 of section 111 of the domestic relations law, as added by chapter 575 of the laws of 1980, are amended to read as follows:
(d) Of the father, whether adult or infant, of a child born out-ofwedlock and [placed with the adoptive parents] more than six months [after birth] old at the time of the filing of a petition to terminate parental rights, application to execute a judicial surrender, petition for approval of an extra-judicial surrender or extra-judicial consent to adoption or petition for adoption, whichever is earliest, but only if such father [shall have] has:
(i) established legal paternity by having been adjudicated as the father by a court of competent jurisdiction or by having acknowledged paternity in a form duly executed pursuant to section forty-one hundred thirty-five-b of the public health law or in a form recognized by the state, territory or country in which it was executed to have the force and effect of an order of paternity or filiation, so long as said legal paternity:
A. was established within six months of the child's first entry into foster care; or
B. was the result of a court action filed within six months of the child's birth that was actively prosecuted until the order was entered; or
(ii) openly lived with the child and openly held himself out to be the father of such child for a period of six months immediately preceding the earlier of the filing of a petition to terminate parental rights, application to execute a judicial surrender, petition for approval of an extra-judicial surrender or extra-judicial consent to adoption or petition for adoption; or
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD14586-01-8
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(iii) maintained substantial and continuous or repeated contact with the child as manifested by[: (i)] the payment by the father toward the support of the child of a fair and reasonable sum, according to the father's means, and either [(ii) the father's]:
A. visiting the child at least [monthly] twice per month when physically and financially able to do so and not prevented from doing so by the person or authorized agency having lawful custody of the child[,]; or [(iii) the father's regular communication]
B. regularly communicating with the child or with the person or agency having the care or custody of the child, when physically [and] or financially unable to visit the child or prevented from doing so by the person or authorized agency having lawful custody of the child.
[The] For purposes of this subparagraph, the subjective intent of the father, whether expressed or otherwise, unsupported by evidence of acts specified in this [paragraph] subparagraph manifesting such intent, shall not preclude a determination that the father failed to maintain substantial and continuous or repeated contact with the child. In making such a determination, the court shall not require a showing of diligent efforts by any person or agency to encourage the father to perform the acts specified in this [paragraph] subparagraph. [A father, whether adult or infant, of a child born out-of-wedlock, who openly lived with the child for a period of six months within the one year period immediately preceding the placement of the child for adoption and who during such period openly held himself out to be the father of such child shall be deemed to have maintained substantial and continuous contact with the child for the purpose of this subdivision.]
(e) Of the father, whether adult or infant, of a child born out-ofwedlock who is under the age of six months at the time [he is placed for] of the filing of a petition to terminate parental rights, application to execute a judicial surrender, a petition for approval of an extra-judicial surrender or extra-judicial consent to adoption or a petition for adoption, whichever is earliest, but only if: (i) such father [openly lived with the child or the child's mother for a continuous period of six months immediately preceding the placement of the child for adoption] is a person entitled to notice pursuant to subdivision two of section one hundred eleven-a of this title or subdivision two of section three hundred eighty-four-c of the social services law; and (ii) such father openly held himself out to be the father of such child [during such period] prior to the filing of a petition to terminate parental rights, application to execute a judicial surrender petition for approval of an extra-judicial surrender or extra-judicial consent to adoption or petition for adoption, whichever is earlier, unless prevented from so doing by the person or agency having lawful custody of the child; and (iii) such father paid a fair and reasonable sum, in accordance with his means, for the medical, hospital and nursing expenses incurred in connection with the mother's pregnancy or with the birth of the child or child support, unless prevented from so doing by the person or agency having lawful custody of the child; and (iv) upon receiving notice of an adoption proceeding pursuant to the provisions of this chapter, or a notice of a proceeding to terminate parental rights pursuant to section three hundred eighty-four-b of the social services law, or a notice of the commitment of the guardianship and custody of the child by voluntary surrender instrument pursuant to section three hundred eighty-three-c or section three hundred eighty-four of the social services law, or a notice of a proceeding to grant temporary guardianship of the child to a proposed adoptive parent pursuant to
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section one hundred fifteen-c of this article, such father filed a motion to intervene in the proceeding, including an assertion of paternity and a request for custody, within thirty days of the date of such notice.
Such consent shall not be required unless paternity is established in accordance with the relevant and otherwise consistent provisions of the family court act, the social services law and the public health law.
§ 2. Subdivisions 1 and 2 of section 111-a of the domestic relations law, subdivision 1 as amended by chapter 371 of the laws of 2013, subdivision 2 as added by chapter 665 of the laws of 1976, paragraph (e) of subdivision 2 as amended by chapter 862 of the laws of 1977, paragraphs (f) and (g) as amended and paragraph (h) of subdivision 2 as added by chapter 575 of the laws of 1980, are amended to read as follows:
1. Notwithstanding any inconsistent provisions of this or any other law, and in addition to the notice requirements of any law pertaining to persons other than those specified in subdivision two of this section, notice as provided herein shall be given to the persons specified in subdivision two of this section of any adoption proceeding initiated pursuant to this article or of any proceeding initiated pursuant to section one hundred fifteen-b of this article relating to the revocation of an adoption consent, when such proceeding involves a child born outof-wedlock provided, however, that such notice shall not be required to be given to any person who previously has been given notice of any [proceeding] petition to terminate parental rights, application to execute a judicial surrender, petition for approval of an extra-judicial surrender or extra-judicial consent to adoption involving the child, [pursuant to section three hundred eighty-four-c of the social services law,] and provided further that notice in an adoption proceeding[,] pursuant to this section shall not be required to be given to any person who has previously received notice of any proceeding pursuant to section one hundred fifteen-b of this article. In addition to such other requirements as may be applicable to the petition in any proceeding in which notice must be given pursuant to this section, the petition shall set forth the names and last known addresses of all persons required to be given notice of the proceeding, pursuant to this section, and there shall be shown by the petition or by affidavit or other proof satisfactory to the court that there are no persons other than those set forth in the petition who are entitled to notice. For the purpose of determining persons entitled to notice of adoption proceedings initiated pursuant to this article, persons specified in subdivision two of this section shall not include any person who has been convicted of one or more of the following sexual offenses in this state or convicted of one or more offenses in another jurisdiction which, if committed in this state, would constitute one or more of the following offenses, when the child who is the subject of the proceeding was conceived as a result: (A) rape in first or second degree; (B) course of sexual conduct against a child in the first degree; (C) predatory sexual assault; or (D) predatory sexual assault against a child.
2. Persons entitled to notice, pursuant to subdivision one of this section, shall include:
(a) any person adjudicated by a court [in this state] of competent jurisdiction to be the father of the child;
(b) [any person adjudicated by a court of another state or territory of the United States to be the father of the child, when a certified copy of the court order has been filed with the putative father regis-
S. 7888 4
try, pursuant to section three hundred seventy-two-c of the social services law;
(c)] any person who has timely filed an unrevoked notice of intent to claim paternity of the child, pursuant to section three hundred seventy-two-c of the social services law;
[(d)] (c) any person who is recorded on the child's birth certificate as the child's father;
[(e)] (d) any person who is openly living with the child [and the child's mother] at the time the proceeding is initiated and who is holding himself out to be the child's father;
[(f)] (e) any person who has been identified as the child's father by the mother in a written, sworn statement;
[(g)] (f) any person holding himself out as the child's father who was married to the child's mother within six months subsequent to the birth of the child and prior to the execution of a surrender instrument or the initiation of a proceeding pursuant to section three hundred eightyfour-b of the social services law; [and]
[(h)] (g) any person who has filed with the putative father registry an instrument acknowledging paternity of the child, pursuant to section 4-1.2 of the estates, powers and trusts law;
(h) any person who has established legal paternity through the execution of an acknowledgment of paternity recognized by any state, territory or country in which it was executed to have the force and effect of an order of paternity or filiation; and
(i) any person who has filed a paternity or custody petition for a child in foster care in which he states that he is the father of the child and where the petition remains pending despite his diligent efforts to prosecute it, so long as the petition was filed prior to issuance of any order freeing the child for adoption.
§ 3. Subdivisions 1 and 2 of section 384-c of the social services law, subdivision 1 as amended by chapter 371 of the laws of 2013, subdivision 2 as added by chapter 665 of the laws of 1976, paragraph (e) of subdivision 2 as amended by chapter 862 of the laws of 1977, paragraphs (f) and (g) as amended and paragraph (h) of subdivision 2 as added by chapter 575 of the laws of 1980, are amended to read as follows:
1. Notwithstanding any inconsistent provision of this or any other law, and in addition to the notice requirements of any law pertaining to persons other than those specified in subdivision two of this section, notice as provided herein shall be given to the persons specified in subdivision two of this section of any [proceeding initiated pursuant to sections three hundred fifty-eight-a, three hundred eighty-four, and three hundred eighty-four-b of this chapter,] petition to terminate parental rights, application to execute a judicial surrender, petition for approval of an extra-judicial surrender or extra-judicial consent to adoption involving a child born out-of-wedlock. Persons specified in subdivision two of this section shall not include any person who has been convicted of one or more of the following sexual offenses in this state or convicted of one or more offenses in another jurisdiction which, if committed in this state, would constitute one or more of the following offenses, when the child who is the subject of the proceeding was conceived as a result: (A) rape in first or second degree; (B) course of sexual conduct against a child in the first degree; (C) predatory sexual assault; or (D) predatory sexual assault against a child.
2. Persons entitled to notice, pursuant to subdivision one of this section, shall include:
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(a) any person adjudicated by a court [in this state] of competent jurisdiction to be the father of the child;
Reflowed for reading: line numbers and page breaks removed. Cite the official text.
Sponsor's memo
Title of bill
An act to amend the domestic relations law and the social services law, in relation to non-marital fathers in adoption, surrender and termi- nation of parental rights proceedings and consents to adoptions in fami- ly and surrogate's courts
This is one in a series of measures being introduced at the request of the Chief Administrative Judge upon the recommendation of his Family Court Advisory and Rules Committee.
In 1979, the United States Supreme Court, in Caban v. Mohammed, 441 US 388 (1979), held a statute unconstitutional where it failed to afford a birth father the right to consent to his child's adoption, where the father had lived with the mother, admitted paternity and had a substan- tial relationship with, and provided support to, the child. Following Caban, the Legislature enacted new criteria defining those putative or unwed fathers entitled to consent to adoptions ("consent fathers") and those entitled simply to notice of termination of parental rights, surrender and adoption proceedings ("notice-only fathers"). Those enti- tled to notice only may be heard regarding the children's best interests but do not have veto power over their adoptions. L.1980, c. 575. Notwithstanding the Legislature's goals of providing "reasonable, unam- biguous and objective" criteria for notice and consent,{1} experience with the 1980 statute has demonstrated that it fulfills none of those intentions. Accordingly, on the advice of our Family Court Advisory and Rules Committee, we propose this measure to expand and objectify both the criteria for non-marital fathers to consent to adoptions and the criteria for those entitled to notice of, but not veto power over, adoptions.
Read the full memo (2,086 words)
1. Consent Fathers: Children Over the Age of Six Months (Domestic Relations Law § 111(1)(d)): Domestic Relations Law § 111(1)(d) sets forth the standards by which the father of a child who was over six months old when "placed with adoptive parents" can achieve the status of a "consent father." Use of the phrase "placed with adoptive parents" has caused considerable confusion, with the case law noting it could argu- ably mean when a child is first placed with a family that later becomes the adoptive resource, or the date that the child's permanency goal is changed to adoption, or the date of the filing of a termination proceed- ing, or the point at which the adoptive parents signed an adoptive placement agreement. See, e.g., Matter of Leake and Watts, Inc. (Kevin G.), 51 Misc.3d 1207(A) (Fam. Ct., Bx.Co, 2016)(Unrep.); Matter of Tati- ana R., 17 Misc.3d 443, 455-57 (Kings Co. Fam. Ct. 2007); Matter of Tasha M., 33 A.D.2d 387 (1st Dept. 2006). This measure provides a clearer, more objective criterion by substituting a more readily iden- tifiable point in time, namely, whether the child was over six months old at the "time of the filing of a petition to terminate parental rights, application to execute a judicial surrender, petition for approval of an extra-judicial surrender or extra-judicial consent to adoption or petition for adoption, whichever is earliest." By using such a concrete and verifiable event, parties will better understand what their rights are and needless litigation over the meaning of the terms of the statute will be avoided.
Beyond clarifying the initial benchmark, this measure incorporates well- established objective criteria into the determination whether a non-mar- ital father is a "consent father." "Consent fathers" would include those who have established legal paternity in a timely manner by having been adjudicated as the father either by a court of competent jurisdiction or by having acknowledged paternity on a form recognized by the jurisdic- tion in which it was executed to have the force and effect of an order of paternity or filiation. The measure sets time limits for the unwed father's establishment of paternity that are consistent with a child's need for prompt resolution of permanency issues: to qualify as a consent father under D.R.L. § 111(1)(d), the unwed father's legal paternity must be established within six months of the child's first entry into foster care or be the result of a court action filed within six months of the child's birth, so long as that matter was actively prosecuted from the time of filing until the order was entered.
Elevation of certain legally adjudicated and acknowledged fathers to "consent fathers" from their current status as "notice only fathers" is consistent with the recently-enacted statute underscoring the long-re- cognized need for early identification of all parents and relatives (paternal and maternal) who may become actively engaged in a child's life and with whom a child who is the subject of child protective proceedings might reside. See Family Court Act § 1017 (L. 2015, c. 567).
Further, again eliminating the ambiguous phrase "placement of the child for adoption," the measure would confer "consent father" status upon a putative father who openly lived with his child and held himself out as his or her father "for a period of six months immediately preceding the earlier of the filing of a petition to terminate parental rights, appli- cation to execute a judicial surrender, petition for approval of an extra-judicial surrender or extra-judicial consent to adoption or peti- tion for adoption."
Finally, this measure incorporates an accepted criterion for the level of visitation contained in the alternative behavioral criteria for establishing the status of a "consent father" under D.R.L. § 111(1)(d). Under the current statute, a non-marital father may qualify as a "consent father" if he has maintained "substantial and continuous or repeated contact with the child" as manifested by the payment of child support and by either visiting the child at least once a month if finan- cially and physically able to do so or maintaining regular contact with the child or person or agency having custody of the child if not finan- cially and physically able to visit. This measure would modify the visitation criterion to require visits twice per month, as that is the standard for foster care visiting contained in regulations of the State Office of Children and Family Services. See 18 NYCRR § 430.12(c)(4) (ii)(d)(1)(I).
2. Consent Fathers: Children Under the Age of Six Months (Domestic Relations Law § 111(1)(e)): Section 111(1)(e) of the Domestic Relations Law, governing the rights of putative fathers whose newborn non-marital children are placed for adoption, was declared unconstitutional by the Court of Appeals in Matter of Raquel Marie X., 76 N.Y.2d 387 (1990), cert. den. sub nom Robert C. v. Miguel T., 498 U.S. 984 (1990), but remains in the statute books, a trap for the unwary litigant. The instant measure would remedy the unconstitutionality and, as with its proposed amendment regarding D.R.L. § 111(1(d), the measure would substitute objective criteria for the calculation of the relevant time- frames.
In the absence of statutory guidance, courts have had to determine on a case-by-case basis whether a father's consent of his infant born out-of- wedlock is required before the adoption of his infant born out-of-wed- lock can be approved. This process undermines the confidence with which adoptions can be planned and impedes achievement of permanent homes for children by significantly complicating litigation. Moreover, as noted with respect to older children under D.R.L. § 111(1)(d), in seeking to apply the judicially-created criteria to determine whether an unwed father's consent should be required for adoption of a child under the age of six months, courts struggle with the ambiguous "placed for adoption" benchmark. This measure thus applies D.R.L. § 111(1)(e) to infants born within six months of "the filing of a petition to terminate parental rights, application to execute a judicial surrender, petition for approval of an extrajudicial surrender or extra-judicial consent to adoption or petition for adoption, whichever is earliest."
In setting criteria to establish which unwed fathers of infants should be able to withhold their consent to a proposed adoption, this measure seeks to provide standards that constitutionally limit these rights to those fathers who, having learned of the pregnancy or birth, come forward promptly to assume full parental responsibility, assuming they have not been prevented from doing so.
The provision of section 111(1)(e) that was struck down in Raquel Marie X., supra, required the consent of an infant's unwed father only if, for the six months preceding the child's placement, the father had lived with the child or mother, held himself out as the child's father, and provided financial support. The Court of Appeals held the "living together" requirement to be unacceptable because that requirement had no bearing on the question of the father's relationship to the newborn infant and could "easily be used to block the father's rights." Id. This measure thus substitutes the more objective criteria for an unwed puta- tive father who would be entitled to receive notice of a judicial proceeding concerning the child under section 111-a of the Domestic Relations Law or section 384-c of the Social Services Law, criteria approved by the United States Supreme Court in Lehr v. Robertson, 463 U.S. 248 (1982). These statutes include, for example, an individual adjudicated as the father or, one who has been identified as the father by the mother in a written, sworn statement.
This measure would continue the requirement that, in order to be consid- ered a "consent father" of an infant, the father must have openly held himself out to be the father of the child, but again substitutes the more objective standard of "prior to the filing of a petition to termi- nate parental rights, application to execute a judicial surrender, peti- tion for approval of an extra- judicial surrender or extra-judicial consent to adoption or petition for adoption, whichever is earliest" to establish the pertinent time-frame. This measure also continues the requirement that the father have paid "a fair and reasonable sum, in accordance with his means" for medical expenses, but adds "child support" as another possible means of financial support. Consistent with the holding in Adoption of Baby Girl S., 76 N.Y.2d 387 (1990), moreover, this measure includes a "savings clause" that would exempt an unwed father from these requirements if he were prevented from fulfilling them by the person or agency having lawful custody of the child. The final criterion establishing "consent father" status in this measure is the requirement that, within 30 days of receiving notice of an adoption proceeding, termination of parental rights proceeding, proceed- ing to grant temporary guardianship of the child to a proposed adoptive parent or notice of the commitment of guardianship and. custody of the child by voluntary surrender instrument, the putative father file a motion to intervene in the proceeding, including an assertion of pater- nity and request for custody. Significantly, the measure provides that the unwed putative father's consent shall not be required unless and until paternity is in fact legally established.
This measure thus cures the constitutional defect identified in Raquel Marie X., supra, sets forth clearer criteria for adjudicating the status of unwed putative fathers of infants, and encourages alleged fathers of infants to assert their claims of paternity promptly so that their chil- dren may obtain permanent homes in a time frame consistent with their developmental needs.
3. Notice-only Fathers (Domestic Relations Law § 111-a, Social Services Law § 384-c): This measure adds two criteria to the eight existing cate- gories of "notice-only" fathers, that is, those unwed putative fathers whose consent to a proposed adoption is not required but who nonetheless are entitled to notice of a termination of parental rights, surrender or adoption proceeding and afforded the opportunity to be heard on the issue of their child's best interests.
The new criteria include:
*any person who has established legal paternity in another state, terri- tory or country through execution of an acknowledgment of paternity recognized by that jurisdiction as having the force and effect of an order of paternity or filiation; and
*with respect to a child in foster care, any person who has filed a paternity or custody petition prior to issuance of any order freeing the child for adoption in which he alleges he is the father of the child and where the petition remains pending despite his diligent efforts to pros- ecute it.
This measure also modifies two of the existing criteria for "notice- only" fathers to include:
*any person adjudicated by a court of competent jurisdiction to be the father of the child; and
*any person who is openly living with the child, not necessarily also with the child's mother, at the time the proceeding is initiated or at the time the child was placed in the care of an
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