Opinion
November 2, 1970
In an adoption proceeding the appeal is from an order of the Family Court, Suffolk County, dated January 21, 1970, which directed that the consent of appellant, the natural father, shall not be required and approved the petition for the adoption (of infant Richard Antidormi). Order reversed, on the law and the facts, with $20 costs and disbursements, and application denied. Looking at appellant's acts in their most favorable light, petitioners have not met their heavy burden of establishing an abandonment within the purview of section 111 Dom. Rel. of the Domestic Relations Law ( Matter of Bistany, 239 N.Y. 19). While it is true that appellant has not visited the child for a period of time and has withheld support payments, he testified that the behavior of one of the petitioners (appellant's former wife) on the occasions of his visits caused the child to become upset and appellant's parental judgment was that further visitation should be deferred until the child would be older and more mature; and that he withheld support payments in response to said petitioner's alleged interference with his visitation rights, and, in any event, said petitioner told him she did not want his support money. There is no evidence that the child was injured thereby. We merely note in passing that a finding of abandonment can be made against a parent only after he has been given the benefit of every controverted fact; and by that standard petitioners may not prevail on this record ( Matter of Bistany, supra; see, also, Matter of Stuart, 35 A.D.2d 785). Munder, Acting P.J., Latham and Brennan, JJ., concur; Martuscello and Kleinfeld, JJ., dissent and vote to affirm the order.