As in those unwed mother cases where this court found abandonment to have been established there must be a complete "repudiation of [parent]hood and an abandonment of [parental] rights and responsibilities" ( People ex rel. Anonymous v. Anonymous, supra, p. 336; Matter of Maxwell, supra). The Appellate Division has correctly appropriated this rule to the divorced parent in other cases ( Matter of Cocozza v. Antidormi, 35 A.D.2d 810, supra; Matter of Porras, 13 A.D.2d 239, supra); and this court affirmed a finding of no abandonment on facts bearing no significant difference from those here presented except there the father's lack of monetary support was not an important factor ( Matter of Willing, 271 App. Div. 935, affd. 298 N.Y. 566). Certainly the inability of Talbot to meet his financial obligations to his children because of his tax problems; or, as the record seems to indicate, because of a combination of such inability and some unwillingness to see to such obligations, might be an element in the case tending toward proof of abandonment.
We cannot find on the part of appellant mother "a settled purpose to be rid of all parental obligations and to forego all parental rights". ( Matter of Maxwell, 4 N.Y.2d 429, 433). Absent such finding, we conclude that the petitioners failed to sustain the burden of establishing such an abandonment of the children by appellant as would permit the court to dispense with the requirement of appellant's consent to the children's adoption under section 111 Dom. Rel. of the Domestic Relations Law (see Matter of Willing, 271 App. Div. 935, affd. 298 N.Y. 566).
In July, 1955 he was refused further visitation and shortly thereafter the instant proceeding was commenced. Appellant cannot be deprived of his parental rights for any but the gravest reasons ( People ex rel. Portnoy v. Strasser, 303 N.Y. 539). Respondent has failed to sustain the burden of establishing an abandonment of the child by appellant within the purview of section 111 Dom. Rel. of the Domestic Relations Law ( Matter of Bistany, 239 N.Y. 19; Matter of Willing, 271 App. Div. 935, affd. 298 N.Y. 566). Appeal from order dated June 27, 1956 dismissed, without costs, as academic. Wenzel, Acting P.J., Murphy, Ughetta, Hallinan and Kleinfeld, JJ., concur.
The burden of establishing abandonment is on the one petitioning for adoption ( Matter of Anonymous, 31 Misc.2d 262; Matter of Porras, 13 A.D.2d 239). This burden must be established by clear and convincing evidence ( Matter of Willing, 271 App. Div. 935, affd. 298 N.Y. 566). Under all the circumstances, this court finds that the petitioners have not sustained the burden of the proof as to abandonment, and the petition is accordingly dismissed and the application denied on the law and the facts.
The proof indicates that the respondent's failure to perform his natural and legal obligations of care and support by withholding his presence, the demonstration of parental affection or an opportunity on the part of the child to display filial affection, constitutes a relinquishment of parental claims and an abandonment of the child. The burden is on the petitioners to show abandonment and it is a heavy burden because only unequivocal and absolute abandonment by a natural parent warrants a severance of blood ties ( Matter of Norris, 157 Misc. 333; Matter of Willing, 271 App. Div. 935, affd. 298 N.Y. 566). The sole question to be determined in this proceeding is: "Has there been an abandonment by the natural father of the child within the meaning of section 111 Dom. Rel. of the Domestic Relations Law which will permit the adoption without the consent of the natural father."
This is denied by the mother's testimony which states that he was never refused permission to see the child at any time prior to the separation agreement. It is interesting to note the more or less parallel facts here present with those in Matter of Willing ( 298 N.Y. 566) with the exception that in the Willing case there does not appear to have been any consent to a future adoption by the father. There the father was given visitation rights on Sundays, of which he failed to avail himself, except in one instance in October, 1942, when he requested to see the child away from the mother's home. Here the respondent was absolutely foreclosed by an agreement from any contact with his child.
No solution is completely satisfactory to either side, and of course only unequivocal and absolute abandonment by the father warrants a severance of blood ties ( Matter of Bistany, 239 N.Y. 19; Matter of Anonymous, 13 Misc.2d 653, supra; Matter of Norris, 157 Misc. 333). Under all the circumstances the court finds that the petitioner has not sustained the burden of proof as to abandonment ( Matter of Willing, 271 App. Div. 935, affd. 298 N.Y. 566). Petitions denied.
" (Italics supplied.) This is not to deny that the burden placed on the adopting parents to show abandonment is a heavy one. Only unequivocal and absolute abandonment by the parent warrants a severance of blood ties ( Matter of Morris, 157 Misc. 333; Matter of Willing, 271 App. Div. 935, affd. 298 N.Y. 566; Matter of Serby, 2 A.D.2d 988; Matter of Bistany, supra). On the other hand, the court owes an obligation to the child and the adopting parents to find an abandonment when a proper showing has been made that the parent has neglected and refused to perform his natural and legal obligations of care and support, when he has withheld his presence, the demonstration of parental affection, or the opportunity on the part of the child to display filial affection.
The divorce decree incorporated the terms of the separation agreement and awarded the mother sole care, custody and control of the child. In August, 1949, the mother and petitioner were married and since that time the child has continually been living with them. Regardless of the court's view of the best manner to promote the interests of the child, the objection of the natural father is a complete bar to this application unless petitioner has sustained the burden of proving that respondent has abandoned the child (Domestic Relations Law, § 111; see Matter of Willing, 271 App. Div. 935, affd. 298 N.Y. 566, and Matter of Anonymous, 192 Misc. 359, 365). "The term `abandonment' means neglect and refusal to perform the natural and legal obligations of care and support. If a parent withholds his presence, his love, his care, the opportunity to display filial affection and neglects to lend support and maintenance, such a parent relinquishes all parental claim, and abandons the child." (Matter of Hayford, 109 Misc. 479, 481.)
In August, 1949, the mother and petitioner were married and since that time the child has continually been living with them. Regardless of the court's view of the best manner to promote the interests of the child, the objection of the natural father is a complete bar to this application unless petitioner has sustained the burden of proving that respondent has abandoned the child (Domestic Relations Law, § 111; see Matter of Willing, 271 A.D. 935, affd. 298 N.Y. 566, and Matter of Anonymous, 192 Misc. 359, 365). "The term `abandonment' means neglect and refusal to perform the natural and legal obligations of care and support.