Opinion
2011-06-14
SOLLY M., Plaintiff,v.AUDREY S. and Deland W., Defendants.
Andrew Citron, New York City, for Plaintiff.Audrey S., Defendant Pro Se.
Andrew Citron, New York City, for Plaintiff.Audrey S., Defendant Pro Se.BERNICE D. SIEGAL, J.
The issue before this court is whether the provision in a Judicial Consent by a birth parent for the private placement adoption of a child, which provided that “the consent becomes irrevocable when executed” is equivalent to an adoption for the purpose of extinguishing the birth parent's obligation to pay child support. For the reasons set forth below, the court denies Plaintiff's motion and holds that the Judicial Consent without the finalization of an adoption does not extinguish the parent's obligation to pay child support.
Plaintiff Solly M. (hereinafter “Solly M”), the birth father and defendant Audrey S. (hereinafter “Audrey S”.) conceived a daughter out of wedlock on August 11, 1995. It is undisputed that the parties subsequently separated and that Audrey S. requested that the Birth Father execute a Judicial Consent in support of a step parent adoption petition allowing defendant Deland W. to become the adoptive step father. The adoption petition was filed by Audrey S. and Deland W.; the birth father thereafter appeared before the Surrogate's Court on March 15, 2000 and executed the Judicial Consent to the adoption of his daughter in compliance with Domestic Relations Law § 115–b. Solly M. maintains that after signing the Judicial Consent, he had no further parental rights regarding the minor child. Audrey S. contends that the Judicial Consent did not terminate Solly M.'s parental obligations.
Solly M. now moves by order to show cause for an order declaring his Judicial Consent to the adoption of the minor child, the subject of a step parent adoption proceeding terminated his parental rights regarding the minor child. In support of his Order to Show Cause, Solly M. includes a complaint, a Judicial Consent—Birth or Legal Parent—Private Placement (as more fully described below), the Petition for a violation of Support Order filed by Audrey S. in Family Court and a Cross Petition by Solly M. to terminate the Order of Support. In opposition, Audrey S, in addition to family court orders of support provides the Order of the Surrogate granting Audrey S. the right to withdraw the private placement adoption dated October 3, 2001.
The Judicial Consent states in pertinent part that “this consent becomes irrevocable when executed or acknowledged before a judge or surrogate, and thereafter no action or proceeding may be maintained by [Solly M] for the custody of the child.” Thereafter the Bronx Surrogate executed the Judicial Consent. It is undisputed that the adoption petition was subsequently withdrawn on October 3, 2001. Solly M. contends that the petition was withdrawn without his knowledge. Audrey S. contends that the adoption process was undertaken with the best interests of the minor child in mind but fails to state why the petition was eventually withdrawn. However, the reason for withdrawal is not relevant to the issue at hand. In any event, the adoption was never finalized.
It is well settled that parents have a duty to support their minor children. (Family Court Act § 413; Roe v. Doe, 29 N.Y.2d 188, 324 N.Y.S.2d 71, 272 N.E.2d 567 [1971].) However, “[t]he majority of state courts have held that absent a statute directing otherwise, an order terminating parental rights severs the parent-child relationship to the degree that the parent no longer owes a duty to support the child.” ( In re T.K.Y., 205 S.W.3d 343, 354 [Tenn. 2006] quoting McCabe v. McCabe, 78 P.3d 956, 960 (Okla.2003).) Significantly, there is no such statutory provision codified in New York.
Consistently, courts have construed the Domestic Relations Law and Family Court Act to provide for the best interests of the minor child, ( Wanda M. v. Lawrence T., 80 A.D.3d 765, 915 N.Y.S.2d 610 [2nd Dept. January 25, 2011]
[based on the “best interests of the child” a putative father is equitably estopped from denying paternity when he holds himself out as child's father and child always believed that putative father was the father]; In re Eberhardt, 83 A.D.3d 116, 920 N.Y.S.2d 216 [2nd Dept. March 29, 2011] [the court must consider whether child's best interests will be substantially promoted by proposed name change minor child] ) especially with respect to financial support ( Duggan v. Duggan, 83 A.D.3d 703, 923 N.Y.S.2d 114 [2nd Dept. April 5, 2011] [a stipulation reducing the amount of monthly child support was invalid as it failed to consider the “best interests of the children”]; citing Gravlin v. Ruppert, 98 N.Y.2d 1, 743 N.Y.S.2d 773, 770 N.E.2d 561 [2002]; Louzoun v. Montalto, 70 A.D.3d 652, 893 N.Y.S.2d 630 [2nd Dept. 2010] [based on the particular circumstances, ordering defendant to pay for extracurricular activities for the minor children through eighth grade was in the best interests of the children]; Niewiadomski v. Jacoby, 61 A.D.3d 871, 878 N.Y.S.2d 388 [2nd Dept. 2009] [in determining whether to award educational expenses in a child support proceeding the court must consider the “best interests of the child”].)
A parent may not contract away his or her obligation to support a minor child in the interest of protecting the welfare of minor children. ( Strenge v. Bearman, 228 A.D.2d 664, 645 N.Y.S.2d 315 [2nd Dept. 1996] citing Pecora v. Cerillo, 207 A.D.2d 215, 621 N.Y.S.2d 363 [2nd Dept. 1995].) A parent's duty to support his or her minor child is “primary in nature” and that a parent remains legally obligated for the support of such minor child until such time as the adoption is finalized. ( Harvey–Cook v. Neill, 118 A.D.2d 109, 504 N.Y.S.2d 434 [2nd Dept. 1986].) Although the father in Harvey–Cook executed a “Surrender of Guardianship and Custody” whereby he authorized the agency to “place the child in an adoptive home or to otherwise assume all parental responsibilities for such child,” ( Harvey–Cook, 118 A.D.2d 109, 110, 504 N.Y.S.2d 434.), the adoption did not become final and the court held that the father was responsible for continuing child support. ( Id.)
In the instant matter, defendant Deland W., the proposed adoptive step-father, never formalized the adoption. Solly M. is asking this court to absolve a natural father from his obligation to support his minor child where the child would not have a father to assume the duties of basic child support. His contention that the mother actively pursued the adoption and that her failure to follow through on the adoption, and her subsequent failure to actively locate him for eight years, should prevent her from seeking child support is clearly against public policy because it would not take into account the best interests of the child ( cf. Wanda M. v. Lawrence T., 80 A.D.3d 765, 915 N.Y.S.2d 610 [2nd Dept. January 25, 2011], supra; In re Eberhardt, 83 A.D.3d 116, 920 N.Y.S.2d 216 [2nd Dept. March 29, 2011], supra; Duggan v. Duggan, 83 A.D.3d 703, 923 N.Y.S.2d 114 [2nd Dept. April 5, 2011], supra citing Gravlin v. Ruppert, 98 N.Y.2d 1, 743 N.Y.S.2d 773, 770 N.E.2d 561 [2002], supra; Louzoun v. Montalto, 70 A.D.3d 652, 893 N.Y.S.2d 630 [2nd Dept. 2010]; Niewiadomski v. Jacoby, 61 A.D.3d 871, 878 N.Y.S.2d 388 [2nd Dept. 2009], supra ) and would not ensure adequate child support for the child. ( Priolo v. Priolo, 211 A.D.2d 627, 621 N.Y.S.2d 367 [2nd Dept. 1995] [New York State has a clear public policy ensuring adequate child support for minor children].)
Plaintiff, in reply, relies on a Family Court case wherein the court found that the parental rights of the biological father, who was incarcerated for the attempted murder of his wife, were terminated based upon his execution of extrajudicial consents to the adoption of his children despite the failure to complete the adoption proceeding. ( In re Adoptions of Michael S., 159 Misc.2d 894, 607 N.Y.S.2d 214 [Fam.Ct.West.Co.1993].) In Michael S., the wife, and mother of the children, sustained severe head trauma from attempted murder that caused her to be in a coma and vegetative state. The Family Court in Michael S. was clear to note that the decision was based on the “unique circumstances” of the case, including father's incarceration and mother's vegetative state. Furthermore, it is apparent that the best interests of the children were served by accepting “extrajudicial consent,” of the father who was incarcerated, to help facilitate the adoption of the children who were left virtually parentless. In the within action, the best interests of the child would not be served if the court allows the Judicial Consent of the father to terminate his duty to pay child support.
Plaintiff is essentially asking this court to punish the minor child for the laches of the mother. As the purpose of “the imposition of support obligations is for the welfare of the child, a parent should not be able to avoid his or her duty to support the child by claiming that the other parent is guilty of laches.” ( See Robinson v. Aspinall, 238 A.D.2d 255, 657 N.Y.S.2d 15 [1st Dept. 1997] citing Matter of Discenza v. Dann OO., 148 A.D.2d 196, 544 N.Y.S.2d 79 [3rd Dept. 1989] lv. dismissed 75 N.Y.2d 765, 551 N.Y.S.2d 907, 551 N.E.2d 108). Furthermore, in child support proceedings the “best interests of the child” are of a paramount concern. (See Trag v. Frank, 110 A.D.2d 631, 487 N.Y.S.2d 120 [2nd Dept. 1985].) It is without question it is in the best interest of the minor child for the father to assume his child support obligations, especially where there was no valid adoption by the proposed step father.
In sum, based upon the best interests of the child and the fact that the adoption proceeding was never finalized this court finds that the Judicial Consent failed to terminate Solly M's parental rights regarding the minor child.
Accordingly, plaintiff's motion is denied.