Amd §§111 & 111-a, Dom Rel L; amd §384-c, Soc Serv L
Relates to non-marital fathers in adoption, surrender and termination of parental rights proceedings and consents to adoptions in family and surrogate's courts.
STATE OF NEW YORK
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7888
IN SENATE
March 6, 2018
___________
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
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
family and surrogate's courts
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Paragraphs (d) and (e) of subdivision 1 of section 111 of
2 the domestic relations law, as added by chapter 575 of the laws of 1980,
3 are amended to read as follows:
4 (d) Of the father, whether adult or infant, of a child born out-of-
5 wedlock and [placed with the adoptive parents] more than six months
6 [after birth] old at the time of the filing of a petition to terminate
7 parental rights, application to execute a judicial surrender, petition
8 for approval of an extra-judicial surrender or extra-judicial consent to
9 adoption or petition for adoption, whichever is earliest, but only if
10 such father [shall have] has:
11 (i) established legal paternity by having been adjudicated as the
12 father by a court of competent jurisdiction or by having acknowledged
13 paternity in a form duly executed pursuant to section forty-one hundred
14 thirty-five-b of the public health law or in a form recognized by the
15 state, territory or country in which it was executed to have the force
16 and effect of an order of paternity or filiation, so long as said legal
17 paternity:
18 A. was established within six months of the child's first entry into
19 foster care; or
20 B. was the result of a court action filed within six months of the
21 child's birth that was actively prosecuted until the order was entered;
22 or
23 (ii) openly lived with the child and openly held himself out to be the
24 father of such child for a period of six months immediately preceding
25 the earlier of the filing of a petition to terminate parental rights,
26 application to execute a judicial surrender, petition for approval of an
27 extra-judicial surrender or extra-judicial consent to adoption or peti-
28 tion for adoption; or
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD14586-01-8
S. 7888 2
1 (iii) maintained substantial and continuous or repeated contact with
2 the child as manifested by[: (i)] the payment by the father toward the
3 support of the child of a fair and reasonable sum, according to the
4 father's means, and either [(ii) the father's]:
5 A. visiting the child at least [monthly] twice per month when phys-
6 ically and financially able to do so and not prevented from doing so by
7 the person or authorized agency having lawful custody of the child[,];
8 or [(iii) the father's regular communication]
9 B. regularly communicating with the child or with the person or agency
10 having the care or custody of the child, when physically [and] or finan-
11 cially unable to visit the child or prevented from doing so by the
12 person or authorized agency having lawful custody of the child.
13 [The] For purposes of this subparagraph, the subjective intent of the
14 father, whether expressed or otherwise, unsupported by evidence of acts
15 specified in this [paragraph] subparagraph manifesting such intent,
16 shall not preclude a determination that the father failed to maintain
17 substantial and continuous or repeated contact with the child. In making
18 such a determination, the court shall not require a showing of diligent
19 efforts by any person or agency to encourage the father to perform the
20 acts specified in this [paragraph] subparagraph. [A father, whether
21 adult or infant, of a child born out-of-wedlock, who openly lived with
22 the child for a period of six months within the one year period imme-
23 diately preceding the placement of the child for adoption and who during
24 such period openly held himself out to be the father of such child shall
25 be deemed to have maintained substantial and continuous contact with the
26 child for the purpose of this subdivision.]
27 (e) Of the father, whether adult or infant, of a child born out-of-
28 wedlock who is under the age of six months at the time [he is placed
29 for] of the filing of a petition to terminate parental rights, applica-
30 tion to execute a judicial surrender, a petition for approval of an
31 extra-judicial surrender or extra-judicial consent to adoption or a
32 petition for adoption, whichever is earliest, but only if: (i) such
33 father [openly lived with the child or the child's mother for a contin-
34 uous period of six months immediately preceding the placement of the
35 child for adoption] is a person entitled to notice pursuant to subdivi-
36 sion two of section one hundred eleven-a of this title or subdivision
37 two of section three hundred eighty-four-c of the social services law;
38 and (ii) such father openly held himself out to be the father of such
39 child [during such period] prior to the filing of a petition to termi-
40 nate parental rights, application to execute a judicial surrender peti-
41 tion for approval of an extra-judicial surrender or extra-judicial
42 consent to adoption or petition for adoption, whichever is earlier,
43 unless prevented from so doing by the person or agency having lawful
44 custody of the child; and (iii) such father paid a fair and reasonable
45 sum, in accordance with his means, for the medical, hospital and nursing
46 expenses incurred in connection with the mother's pregnancy or with the
47 birth of the child or child support, unless prevented from so doing by
48 the person or agency having lawful custody of the child; and (iv) upon
49 receiving notice of an adoption proceeding pursuant to the provisions of
50 this chapter, or a notice of a proceeding to terminate parental rights
51 pursuant to section three hundred eighty-four-b of the social services
52 law, or a notice of the commitment of the guardianship and custody of
53 the child by voluntary surrender instrument pursuant to section three
54 hundred eighty-three-c or section three hundred eighty-four of the
55 social services law, or a notice of a proceeding to grant temporary
56 guardianship of the child to a proposed adoptive parent pursuant to
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1 section one hundred fifteen-c of this article, such father filed a
2 motion to intervene in the proceeding, including an assertion of pater-
3 nity and a request for custody, within thirty days of the date of such
4 notice.
5 Such consent shall not be required unless paternity is established in
6 accordance with the relevant and otherwise consistent provisions of the
7 family court act, the social services law and the public health law.
8 § 2. Subdivisions 1 and 2 of section 111-a of the domestic relations
9 law, subdivision 1 as amended by chapter 371 of the laws of 2013, subdi-
10 vision 2 as added by chapter 665 of the laws of 1976, paragraph (e) of
11 subdivision 2 as amended by chapter 862 of the laws of 1977, paragraphs
12 (f) and (g) as amended and paragraph (h) of subdivision 2 as added by
13 chapter 575 of the laws of 1980, are amended to read as follows:
14 1. Notwithstanding any inconsistent provisions of this or any other
15 law, and in addition to the notice requirements of any law pertaining to
16 persons other than those specified in subdivision two of this section,
17 notice as provided herein shall be given to the persons specified in
18 subdivision two of this section of any adoption proceeding initiated
19 pursuant to this article or of any proceeding initiated pursuant to
20 section one hundred fifteen-b of this article relating to the revocation
21 of an adoption consent, when such proceeding involves a child born out-
22 of-wedlock provided, however, that such notice shall not be required to
23 be given to any person who previously has been given notice of any
24 [proceeding] petition to terminate parental rights, application to
25 execute a judicial surrender, petition for approval of an extra-judicial
26 surrender or extra-judicial consent to adoption involving the child,
27 [pursuant to section three hundred eighty-four-c of the social services
28 law,] and provided further that notice in an adoption proceeding[,]
29 pursuant to this section shall not be required to be given to any person
30 who has previously received notice of any proceeding pursuant to section
31 one hundred fifteen-b of this article. In addition to such other
32 requirements as may be applicable to the petition in any proceeding in
33 which notice must be given pursuant to this section, the petition shall
34 set forth the names and last known addresses of all persons required to
35 be given notice of the proceeding, pursuant to this section, and there
36 shall be shown by the petition or by affidavit or other proof satisfac-
37 tory to the court that there are no persons other than those set forth
38 in the petition who are entitled to notice. For the purpose of determin-
39 ing persons entitled to notice of adoption proceedings initiated pursu-
40 ant to this article, persons specified in subdivision two of this
41 section shall not include any person who has been convicted of one or
42 more of the following sexual offenses in this state or convicted of one
43 or more offenses in another jurisdiction which, if committed in this
44 state, would constitute one or more of the following offenses, when the
45 child who is the subject of the proceeding was conceived as a result:
46 (A) rape in first or second degree; (B) course of sexual conduct against
47 a child in the first degree; (C) predatory sexual assault; or (D) preda-
48 tory sexual assault against a child.
49 2. Persons entitled to notice, pursuant to subdivision one of this
50 section, shall include:
51 (a) any person adjudicated by a court [in this state] of competent
52 jurisdiction to be the father of the child;
53 (b) [any person adjudicated by a court of another state or territory
54 of the United States to be the father of the child, when a certified
55 copy of the court order has been filed with the putative father regis-
S. 7888 4
1 try, pursuant to section three hundred seventy-two-c of the social
2 services law;
3 (c)] any person who has timely filed an unrevoked notice of intent to
4 claim paternity of the child, pursuant to section three hundred seven-
5 ty-two-c of the social services law;
6 [(d)] (c) any person who is recorded on the child's birth certificate
7 as the child's father;
8 [(e)] (d) any person who is openly living with the child [and the
9 child's mother] at the time the proceeding is initiated and who is hold-
10 ing himself out to be the child's father;
11 [(f)] (e) any person who has been identified as the child's father by
12 the mother in a written, sworn statement;
13 [(g)] (f) any person holding himself out as the child's father who was
14 married to the child's mother within six months subsequent to the birth
15 of the child and prior to the execution of a surrender instrument or the
16 initiation of a proceeding pursuant to section three hundred eighty-
17 four-b of the social services law; [and]
18 [(h)] (g) any person who has filed with the putative father registry
19 an instrument acknowledging paternity of the child, pursuant to section
20 4-1.2 of the estates, powers and trusts law;
21 (h) any person who has established legal paternity through the
22 execution of an acknowledgment of paternity recognized by any state,
23 territory or country in which it was executed to have the force and
24 effect of an order of paternity or filiation; and
25 (i) any person who has filed a paternity or custody petition for a
26 child in foster care in which he states that he is the father of the
27 child and where the petition remains pending despite his diligent
28 efforts to prosecute it, so long as the petition was filed prior to
29 issuance of any order freeing the child for adoption.
30 § 3. Subdivisions 1 and 2 of section 384-c of the social services law,
31 subdivision 1 as amended by chapter 371 of the laws of 2013, subdivision
32 2 as added by chapter 665 of the laws of 1976, paragraph (e) of subdivi-
33 sion 2 as amended by chapter 862 of the laws of 1977, paragraphs (f) and
34 (g) as amended and paragraph (h) of subdivision 2 as added by chapter
35 575 of the laws of 1980, are amended to read as follows:
36 1. Notwithstanding any inconsistent provision of this or any other
37 law, and in addition to the notice requirements of any law pertaining to
38 persons other than those specified in subdivision two of this section,
39 notice as provided herein shall be given to the persons specified in
40 subdivision two of this section of any [proceeding initiated pursuant to
41 sections three hundred fifty-eight-a, three hundred eighty-four, and
42 three hundred eighty-four-b of this chapter,] petition to terminate
43 parental rights, application to execute a judicial surrender, petition
44 for approval of an extra-judicial surrender or extra-judicial consent to
45 adoption involving a child born out-of-wedlock. Persons specified in
46 subdivision two of this section shall not include any person who has
47 been convicted of one or more of the following sexual offenses in this
48 state or convicted of one or more offenses in another jurisdiction
49 which, if committed in this state, would constitute one or more of the
50 following offenses, when the child who is the subject of the proceeding
51 was conceived as a result: (A) rape in first or second degree; (B)
52 course of sexual conduct against a child in the first degree; (C) preda-
53 tory sexual assault; or (D) predatory sexual assault against a child.
54 2. Persons entitled to notice, pursuant to subdivision one of this
55 section, shall include:
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1 (a) any person adjudicated by a court [in this state] of competent
2 jurisdiction to be the father of the child;
3 (b) [any person adjudicated by a court of another state or territory
4 of the United States to be the father of the child, when a certified
5 copy of the court order has been filed with the putative father regis-
6 try, pursuant to section three hundred seventy-two-c of this chapter;
7 (c)] any person who has timely filed an unrevoked notice of intent to
8 claim paternity of the child, pursuant to section three hundred seven-
9 ty-two-c of this [chapter] title;
10 [(d)] (c) any person who is recorded on the child's birth certificate
11 as the child's father;
12 [(e)] (d) any person who is openly living with the child [and the
13 child's mother] at the time the proceeding is initiated or at the time
14 the child was placed in the care of an authorized agency, and who is
15 holding himself out to be the child's father;
16 [(f)] (e) any person who has been identified as the child's father by
17 the mother in a written, sworn statement;
18 [(g)] (f) any person holding himself out as the child's father who was
19 married to the child's mother within six months subsequent to the birth
20 of the child and prior to the execution of a surrender instrument or the
21 initiation of a proceeding pursuant to section three hundred eighty-
22 four-b of this title; [and]
23 [(h)] (g) any person who has filed with the putative father registry
24 an instrument acknowledging paternity of the child, pursuant to section
25 4-1.2 of the estates, powers and trusts law;
26 (h) any person who has established legal paternity through the
27 execution of an acknowledgement of paternity recognized by any state,
28 territory or country in which it was executed to have the force and
29 effect of an order of paternity or filiation; and
30 (i) any person who has filed a paternity or custody petition for a
31 child in foster care in which he states that he is the father of the
32 child and where the petition remains pending despite his diligent
33 efforts to prosecute it so long as the petition was filed prior to the
34 issuance of any order freeing the child for adoption.
35 § 4. Section 384-c of the social services law is amended by adding a
36 new subdivision 8 to read as follows:
37 8. If a party noticed pursuant to this section for a proceeding under
38 section three hundred eighty-four-b of this title appears and asserts
39 that his consent to any adoption of the child would be required under
40 section one hundred eleven of the domestic relations law, a hearing
41 shall be held prior to the fact-finding hearing. At such hearing, the
42 petitioner in the underlying proceeding shall bear the initial burden of
43 going forward with evidence showing that the noticed party's consent to
44 the adoption would be not required, but the noticed party shall bear the
45 ultimate burden of establishing by a preponderance of the evidence that
46 his consent would be required under the domestic relations law.
47 § 5. This act shall take effect on the ninetieth day after it shall
48 have become a law and shall apply to petitions for adoption, termination
49 of parental rights, approval of extra-judicial surrenders or extra-judi-
50 cial consents to adoption or applications to execute judicial surrenders
51 filed on or after such effective date; provided, however, that this act
52 shall not apply to cases in which judicial determinations had been made
53 prior to such effective date regarding whether a putative father's
54 consent to an adoption would be required or whether he is entitled to
55 notice under section 111-a of the domestic relations law or section
56 384-c of the social services law.
