STATE OF NEW YORK
________________________________________________________________________
4765--A
2017-2018 Regular Sessions
IN SENATE
February 27, 2017
___________
Introduced by Sen. AVELLA -- (at request of the Office of Court Adminis-
tration) -- read twice and ordered printed, and when printed to be
committed to the Committee on Children and Families -- recommitted to
the Committee on Children and Families in accordance with Senate Rule
6, sec. 8 -- reported favorably from said committee, ordered to first
report, amended on first report, ordered to a second report and
ordered reprinted, retaining its place in the order of second report
AN ACT to amend the domestic relations law, the family court act and the
social services law, in relation to conditional surrenders of parental
rights in family and surrogate's court
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Subdivisions 1 and 2 of section 112-b of the domestic
2 relations law, subdivision 1 as added by section 63 of part A of chapter
3 3 of the laws of 2005 and subdivision 2 as amended by chapter 41 of the
4 laws of 2010, are amended to read as follows:
5 1. Nothing in this section shall be construed to prohibit the parties
6 to a proceeding under this chapter from entering into an agreement
7 regarding communication with or contact between an adoptive child, adop-
8 tive parent or parents and a birth parent or parents and/or the adoptive
9 child's biological siblings or half-siblings, provided, however, that
10 such an agreement shall not be legally enforceable unless the judicial
11 approval of the agreement has been incorporated into a written order
12 entered by the court in accordance with subdivision two of this section.
13 2. Agreements regarding communication or contact between an adoptive
14 child, adoptive parent or parents, and a birth parent or parents and/or
15 biological siblings or half-siblings of an adoptive child shall not be
16 legally enforceable unless the terms of the agreement are incorporated
17 into a written court order entered in accordance with the provisions of
18 this section. An agreement for contact or communication between the
19 child and his or her siblings or half-siblings where the child and/or
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD06664-02-8
S. 4765--A 2
1 siblings or half-siblings are fourteen years of age or older shall not
2 be enforceable unless such child and such sibling or half-sibling
3 consent to the agreement in writing. The court shall not incorporate an
4 agreement regarding communication or contact into an order unless the
5 terms and conditions of the agreement have been set forth in writing and
6 consented to in writing by the parties to the agreement, including the
7 attorney representing the adoptive child. The court shall not enter a
8 proposed order unless the court in which the surrender was executed or
9 the court that approved the surrender of the child determined and stated
10 in its order that the communication with or contact between the adoptive
11 child, the prospective adoptive parent or parents and a birth parent or
12 parents and/or biological siblings or half-siblings, as agreed upon and
13 as set forth in the agreement, would be in the adoptive child's best
14 interests. Notwithstanding any other provision of law, a copy of the
15 order entered pursuant to this section incorporating the post-adoption
16 contact agreement shall be given to all parties who have agreed to the
17 terms and conditions of such order.
18 With respect to surrenders executed on or after January first, two
19 thousand nineteen, an agreement regarding communication or contact
20 following an adoption is only enforceable if approval of the agreement
21 has been incorporated into an order in conjunction with a surrender
22 executed before a judge; provided, however, that an agreement regarding
23 communication or contact following an adoption of a child from an
24 authorized agency made in conjunction with an extra-judicial surrender
25 may be enforceable if the following additional conditions have been met:
26 (i) the party or parties surrendering the child attest in a sworn affi-
27 davit that it would be an undue hardship to appear in court to execute
28 the surrender; and (ii) the party or parties surrendering the child were
29 represented by counsel and such counsel was present at the execution of
30 the surrender and informed the surrendering party or parties of the
31 requirements for enforceability of the post-adoption contact agreement.
32 § 2. Paragraph (iv) of subdivision (a) of section 262 of the family
33 court act, as amended by chapter 3 of the laws of 2012, is amended to
34 read as follows:
35 (iv) the parent or person legally responsible, foster parent, or other
36 person having physical or legal custody of the child in any proceeding
37 under article ten or ten-A of this act or section three hundred fifty-
38 eight-a, three hundred eighty-three-c, three hundred eighty-four or
39 three hundred eighty-four-b of the social services law, and a non-custo-
40 dial parent or grandparent served with notice pursuant to paragraph (e)
41 of subdivision two of section three hundred eighty-four-a of the social
42 services law;
43 § 3. Paragraph (b) of subdivision 2 of section 383-c of the social
44 services law, as amended by chapter 41 of the laws of 2010, is amended
45 to read as follows:
46 (b) (i) If a surrender instrument designates a particular person or
47 persons who will adopt a child, such person or persons, the child's
48 birth parent or parents, the authorized agency having care and custody
49 of the child and the child's attorney[,] may enter into a written agree-
50 ment providing for communication or contact between the child and the
51 child's parent or parents on such terms and conditions as may be agreed
52 to by the parties. Such terms and conditions shall be set forth in writ-
53 ing and consented to in writing by the parties to the agreement, includ-
54 ing the attorney representing the child.
55 (ii) If a surrender instrument does not designate a particular person
56 or persons who will adopt the child, then the child's birth parent or
S. 4765--A 3
1 parents, the authorized agency having care and custody of the child and
2 the child's attorney may enter into a written agreement providing for
3 communication or contact, on such terms and conditions as may be agreed
4 to by the parties. Such terms and conditions shall be set forth in writ-
5 ing and consented to in writing by the parties to the agreement, includ-
6 ing the attorney representing the child.
7 (iii) Such agreement also may provide terms and conditions for commu-
8 nication with or contact between the child and the child's biological
9 siblings or half-siblings, if any. If any such sibling or half-sibling
10 is fourteen years of age or older, such terms and conditions shall not
11 be enforceable unless such sibling or half-sibling consents to the
12 agreement in writing.
13 (iv) If the court before which the surrender instrument is presented
14 for approval determines that the agreement concerning communication and
15 contact is in the child's best interests, the court shall approve the
16 agreement and incorporate such approval into a written court order, a
17 copy of which shall be given to the parties. If the court does not
18 approve the agreement, the court may nonetheless approve the surrender;
19 provided, however, that the birth parent or parents executing the
20 surrender instrument shall be informed that the agreement is not
21 enforceable in a court of law and shall be given the opportunity at that
22 time to withdraw such instrument.
23 (v) Enforcement of any agreement prior to the adoption of the child
24 shall be in accordance with subdivision (b) of section one thousand
25 fifty-five-a of the family court act. Subsequent to the adoption of the
26 child, enforcement of any agreement shall be in accordance with section
27 one hundred twelve-b of the domestic relations law.
28 § 4. Subdivision 4 of section 383-c of the social services law is
29 amended by adding a new paragraph (g) to read as follows:
30 (g) A surrender of a child, executed on or after January first, two
31 thousand nineteen, which is made in conjunction with an agreement
32 containing conditions, including, but not limited to, identifying the
33 prospective adoptive parent or parents or prescribing communication or
34 contact with the child and the adoptive parent or parents and/or between
35 the child and his or her biological siblings or half-siblings following
36 the surrender and adoption of the child shall be executed before a
37 judge; provided, however, that such an agreement made in conjunction
38 with an extra-judicial surrender executed after such date may be
39 enforceable if the following conditions have been met in addition to
40 those delineated in paragraph (b) of this subdivision: (i) the party or
41 parties surrendering the child attest in a sworn affidavit that it would
42 be an undue hardship to appear in court to execute the surrender; and
43 (ii) the party or parties surrendering the child were represented by
44 counsel and such counsel was present at the execution of the surrender
45 and informed the surrendering party or parties of the requirements for
46 enforceability of the agreement.
47 § 5. Subparagraphs (ii) and (iii) of paragraph (b) of subdivision 5 of
48 section 383-c of the social services law, subparagraph (ii) as amended
49 by chapter 601 of the laws of 1994 and subparagraph (iii) as added by
50 chapter 479 of the laws of 1990, are amended to read as follows:
51 (ii) that the parent is giving up all rights to have custody, visit
52 with, speak with, write to or learn about the child, forever, unless the
53 parties have agreed to different terms pursuant to subdivision two of
54 this section[,] and unless such terms are written in the surrender or
55 are written in an agreement approved by the court in an order in accord-
56 ance with such subdivision, or, if the parent registers with the
S. 4765--A 4
1 adoption information register, as specified in section forty-one hundred
2 thirty-eight-d of the public health law, that the parent may be
3 contacted at anytime after the child reaches the age of eighteen years,
4 but only if both the parent and the adult child so choose;
5 (iii) that the child will be adopted without the parent's consent and
6 without further notice to the parent, and will be adopted by any person
7 that the agency chooses, unless the surrender paper or an agreement
8 approved by the court in an order in accordance with subdivision two of
9 this section contains the name of the person or persons who will be
10 adopting the child; and
11 § 6. Paragraph (b) of subdivision 2 of section 384 of the social
12 services law, as amended by chapter 41 of the laws of 2010, is amended
13 to read as follows:
14 (b) (i) If a surrender instrument designates a particular person or
15 persons who will adopt a child, such person or persons, the child's
16 birth parent or parents, the authorized agency having care and custody
17 of the child and the child's attorney[,] may enter into a written agree-
18 ment providing for communication or contact between the child and the
19 child's parent or parents on such terms and conditions as may be agreed
20 to by the parties. Such terms and conditions shall be set forth in writ-
21 ing and consented to in writing by the parties to the agreement, includ-
22 ing the attorney representing the child.
23 (ii) If a surrender instrument does not designate a particular person
24 or persons who will adopt the child, then the child's birth parent or
25 parents, the authorized agency having care and custody of the child and
26 the child's attorney may enter into a written agreement providing for
27 communication or contact, on such terms and conditions as may be agreed
28 to by the parties. Such terms and conditions shall be set forth in writ-
29 ing and consented to in writing by the parties to the agreement, includ-
30 ing the attorney representing the child.
31 (iii) Such agreement also may provide terms and conditions for commu-
32 nication with or contact between the child and the child's biological
33 sibling or half-sibling, if any. If the child or any such sibling or
34 half-sibling is fourteen years of age or older, [such terms and condi-
35 tions] an agreement for contact or communication between the child and
36 his or her siblings or half-siblings shall not be enforceable unless
37 such child, sibling or half-sibling consents to the agreement in writ-
38 ing.
39 (iv) If the court before which the surrender instrument is presented
40 for execution or approval, determines that the agreement [concerning
41 communication and contact] is in the child's best interests, the court
42 shall approve the agreement and incorporate such approval into a written
43 court order, a copy of which shall be given to the parties. If the court
44 does not approve the agreement, the court may nonetheless approve the
45 surrender; provided, however, that the birth parent or parents executing
46 the surrender instrument shall be informed that the agreement is not
47 enforceable in a court of law and shall be given the opportunity at that
48 time to withdraw such instrument. Enforcement of any agreement prior to
49 the adoption of the child shall be in accordance with subdivision (b) of
50 section one thousand fifty-five-a of the family court act. Subsequent to
51 the adoption of the child, enforcement of any agreement shall be in
52 accordance with section one hundred twelve-b of the domestic relations
53 law.
54 § 7. Subdivision 3 of section 384 of the social services law, as
55 amended by chapter 479 of the laws of 1990, the opening paragraph as
56 amended by chapter 185 of the laws of 2006, the fifth undesignated para-
S. 4765--A 5
1 graph as added by chapter 680 of the laws of 2007, the sixth undesig-
2 nated paragraph and the closing paragraph as added by chapter 76 of the
3 laws of 2002, and subparagraphs (i) and (ii) of the sixth undesignated
4 paragraph as amended by chapter 41 of the laws of 2010, is amended to
5 read as follows:
6 3. Instrument and intervention. (a) The instrument herein provided
7 shall be executed and acknowledged [(a)] (i) before any judge or surro-
8 gate in this state having jurisdiction over adoption proceedings, except
9 that if the child is being surrendered as a result of, or in connection
10 with, a proceeding before the family court pursuant to article ten or
11 ten-A of the family court act, the instrument shall be executed and
12 acknowledged in the family court that exercised jurisdiction over such
13 proceeding and shall be assigned, wherever practicable, to the judge who
14 last presided over such proceeding; or [(b)] (ii) in the presence of one
15 or more witnesses and acknowledged by such witness or witnesses, in the
16 latter case before a notary public or other officer authorized to take
17 proof of deeds, and shall be recorded in the office of the county clerk
18 in the county where such instrument is executed, or where the principal
19 office of such authorized agency is located, in a book which such county
20 clerk shall provide and shall keep under seal.
21 (b) A surrender of a child, executed on or after January first, two
22 thousand nineteen, which is made in conjunction with an agreement
23 containing conditions, including, but not limited to, identifying the
24 prospective adoptive parent or parents or prescribing communication or
25 contact with the child and the adoptive parent or parents and/or between
26 the child and his or her biological siblings or half-siblings following
27 the surrender and adoption of the child shall be executed before a
28 judge; provided, however, that such an agreement made in conjunction
29 with an extra-judicial surrender executed after such date may be
30 enforceable if the following conditions have been met in addition to
31 those delineated in paragraph (b) of subdivision two of this section:
32 (i) the party or parties surrendering the child attest in a sworn
33 affidavit that it would be an undue hardship to appear in court to
34 execute the surrender; and
35 (ii) the party or parties surrendering the child were represented by
36 counsel and such counsel was present at the execution of the surrender
37 and informed the surrendering party or parties of the requirements for
38 enforceability of the agreement.
39 (c) Such record shall be subject to inspection and examination only as
40 provided in subdivisions three and four of section three hundred seven-
41 ty-two of this title.
42 (d) Notwithstanding any other provision of law, if the parent surren-
43 dering the child for adoption is in foster care the instrument shall be
44 executed before a judge of the family court.
45 (e) Whenever the term surrender or surrender instrument is used in any
46 law relating to the adoption of children who are not in foster care, it
47 shall mean and refer exclusively to the instrument [hereinabove]
48 described in this subdivision for the commitment of the guardianship of
49 the person and the custody of a child to an authorized agency by his or
50 her parents, parent or guardian; and in no case shall it be deemed to
51 apply to any instrument purporting to commit the guardianship of the
52 person and the custody of a child to any person other than an authorized
53 agency, nor shall such term or the provisions of this section be deemed
54 to apply to any instrument transferring the care and custody of a child
55 to an authorized agency pursuant to section three hundred eighty-four-a
56 of this [chapter] title.
S. 4765--A 6
1 (f)(i) Any person or persons having custody of a child for the purpose
2 of adoption through an authorized agency shall be permitted as a matter
3 of right, as an interested party, to intervene in any proceeding
4 commenced to set aside a surrender purporting to commit a guardianship
5 of the person or custody of a child executed under the provisions of
6 this section. Such intervention may be made anonymously or in the true
7 name of said person.
8 (ii) Any person or persons having custody for more than twelve months
9 through an authorized agency for the purpose of foster care shall be
10 permitted as a matter of right, as an interested party, to intervene in
11 any proceeding commenced to set aside a surrender purporting to commit
12 the guardianship of the person and custody of a child executed under the
13 provisions of this section. Such intervention may be made anonymously or
14 in the true name of said person or persons having custody of the child
15 for the purpose of foster care.
16 (g) A copy of such surrender shall be given to [such] the surrendering
17 parent upon the execution thereof. The surrender shall include the
18 following statement: "I, (name of surrendering parent), this ___ day of
19 __________, _____, have received a copy of this surrender. (Signature of
20 surrendering parent)". Such surrendering parent shall so acknowledge the
21 delivery and the date of the delivery in writing on the surrender.
22 (h) Where the parties have agreed that the surrender shall be subject
23 to conditions pursuant to subdivision two of this section, the instru-
24 ment shall further state in plain language that:
25 (i) the authorized agency shall notify the parent, unless such notice
26 is expressly waived by a statement written by the parent and appended to
27 or included in such instrument, the attorney for the child and the court
28 that approved the surrender within twenty days of any substantial fail-
29 ure of a material condition of the surrender prior to the finalization
30 of the adoption of the child; and
31 (ii) except for good cause shown, the authorized agency shall file a
32 petition on notice to the parent unless notice is expressly waived by a
33 statement written by the parent and appended to or included in such
34 instrument and the child's attorney in accordance with section one thou-
35 sand fifty-five-a of the family court act within thirty days of such
36 failure, in order for the court to review such failure and, where neces-
37 sary, to hold a hearing; provided, however, that, in the absence of such
38 filing, the parent and/or attorney for the child may file such a peti-
39 tion at any time up to sixty days after notification of such failure.
40 Such petition filed by a parent or attorney for the child must be filed
41 prior to the child's adoption; and
42 (iii) the parent is obligated to provide the authorized agency with a
43 designated mailing address, as well as any subsequent changes in such
44 address, at which the parent may receive notices regarding any substan-
45 tial failure of a material condition, unless such notification is
46 expressly waived by a statement written by the parent and appended to or
47 included in such instrument.
48 Nothing in this paragraph shall limit the notice on the instrument
49 with respect to a failure to comply with a material condition of a
50 surrender subsequent to the finalization of the adoption of the child.
51 § 8. Subdivision 4 of section 384 of the social services law, as
52 amended by chapter 185 of the laws of 2006, is amended to read as
53 follows:
54 4. Upon petition by an authorized agency, a judge of the family court,
55 or a surrogate, may approve such surrender, on such notice to such
56 persons as the surrogate or judge may in his or her discretion
S. 4765--A 7
1 prescribe. If the child is being surrendered as a result of, or in
2 connection with, a proceeding before the family court pursuant to arti-
3 cle ten or ten-A of the family court act, the petition shall be filed in
4 the family court that exercised jurisdiction over such proceeding and
5 shall be assigned, wherever practicable, to the judge who last presided
6 over such proceeding. The petition shall set forth the names and last
7 known addresses of all persons required to be given notice of the
8 proceeding, pursuant to section three hundred eighty-four-c of this
9 title, and there shall be shown by the petition or by affidavit or other
10 proof satisfactory to the court that there are no persons other than
11 those set forth in the petition who are entitled to notice pursuant to
12 such section. At the time that a parent appears before a judge or surro-
13 gate to execute and acknowledge a surrender or for the judge to approve
14 a surrender, the judge or surrogate shall inform such parent of the
15 right to be represented by legal counsel of the parent's own choosing
16 and of the right to obtain supportive counseling and of any right to
17 have counsel assigned pursuant to section two hundred sixty-two of the
18 family court act, section four hundred seven of the surrogate's court
19 procedure act, or section thirty-five of the judiciary law. No person
20 who has received such notice and been afforded an opportunity to be
21 heard may challenge the validity of a surrender approved pursuant to
22 this subdivision in any other proceeding. However, this subdivision
23 shall not be deemed to require approval of a surrender by a surrogate or
24 judge for such surrender to be valid, provided, however, that an agree-
25 ment made in conjunction with a surrender that contains conditions,
26 including, but not limited to, identifying the prospective adoptive
27 parent or parents or prescribing communication or contact with the child
28 and the adoptive parent or parents and/or between the child and his or
29 her biological siblings or half-siblings following the surrender and
30 adoption of the child shall be enforceable in a court of law only if the
31 requirements of subdivisions two and three of this section have been
32 met.
33 § 9. This act shall take effect on the first of January next succeed-
34 ing the date on which it shall have become a law.
