I live in Western NYS. I had a daughter in 2002 with my ex husband. We separated shortly after and I was granted sole custody in 2005 due to his lack of involvement with my daughter. Currently I have sole custody and his visitation rghts were suspended in 2006 for 6 months and he never repetitioned to get visitation back so there is no order for visitation.

I met my current husband in 2004 and we were married in 2006 and have two more children together ages 2 and 4 months.

My ex-husband has not called my daughter in years and has not seen her since Nov 2005. She doesn't know his name or what he looks like and calls my husband, 'Daddy'. She knows of my ex-husband- she calls him her 'other daddy', but she is not interested in a relationship with him. My ex-husband clearly does not want the responsibility of raising a child but refuses to consent to a stepparent adoption. He pays support sporatically through wage garnishment and we go to court on a regular basis for violations of this current order.

My daughter is very distraught to not share our family's name. She feels cheated that we all have the same last name and hers is different. My husband has always wanted to adopt her as he is her true father. At school, she becomes very upset when they refer to her with her legal last name.

On top of the lack of involvement in her life, my ex husband has been arrested several times for drug abuse, assault, DWI, petit larceny, etc etc. He is also addicted to pain killers and overdoses frequently to the point of needing resuscitation and hospitalization. Perhaps this latter information is irrelevant, but it is a clear indicator of his character.

When we lived in a different NYS county in 2007, my husband attempted to adopt my daughter and the judge would not hear our case. He said my ex husband needs to consent or be physically/mentally unable to consent to proceed.

My questions are:
1- Now that it has been several years without contact besides garnished wages- and my husband wants to adopt, will a judge hear our case?
2- As heart breaking as it will be to hear a 'No' to the previous question, will they at least consider a name change so she can 'be like the rest of us'?
3- How much does a stepparent adoption cost?
4- What can we do to appeal if the judge won't hear us?
5- Are there lawyers in my area (WNY) who will work on a sliding scale?

Thank you,
A seriously concerned mother

My questions are:
1- Now that it has been several years without contact besides garnished wages- and my husband wants to adopt, will a judge hear our case?
2- As heart breaking as it will be to hear a 'No' to the previous question, will they at least consider a name change so she can 'be like the rest of us'?
3- How much does a stepparent adoption cost?
4- What can we do to appeal if the judge won't hear us?
5- Are there lawyers in my area (WNY) who will work on a sliding scale?

Thank you,
A seriously concerned mother



1 - No. Your current husband cannot adopt unless your husband agrees and signs the consent papers. No way around it.

2 - You can always petition for a name change. The request has to be published. "
It is possible, however, to change a child’s name without the process of adoption through petitioning the court for a name change by filing certain paperwork. How this works will vary from state to state, and while in the simplest cases you may be able to fill out the forms yourself, you will likely need to consult a lawyer or a legal aid society. You will also need to demonstrate that you have notified (or, if he is long gone, attempted to notify) the child’s natural father of your desire to change the child’s name. In some states, the natural father’s consent is required; in others, it is not. The court will weigh whether or not the name change is in the child’s best interests and will accept or deny the petition accordingly." In NY I believe you need the consent of the father as this is seen as putting a wedge between the father and the child. Essortment Articles: Free Online Articles on Health, Science, Education & More.. (http://www.essortment.com/lifestyle/changeminorchi_skyf.html)

3 - The cost of adoption varies Attorney to Attorney BUT, again, without the consent of the father there can be no adoption. It would be best to consult with an Attorney, ask about fees up front.

4 - You would have to change the law in order to have your husband adopt without the father's consent - and that isn't going to happen.

5 - I am not aware of any Attorneys in family practice in WNY who have a "sliding scale" when it comes to adoptions. Your best bet is to call around and ask about fees. Disbursements and filing fees are also expensive in these cases so make certain you are clear on what the total could be.

1. You can probably get a judge to "hear your case" but I wouldn't count on getting any different of an outcome than you have in the past. Bottom line, if the bio dad won't consent to the adoption, then it won't happen. You were already told that by one judge and there's no reason to believe that another judge will tell you something different.
2. Actually, your daughter can use any name she wants, regardless of what her legal name might be.
3. Filing fees plus attorney's fees. The court clerk should be able to advise you as to the filing fees. Your attorney will advise you as to his/her fees.
4. Probably not much. Generally an appeal can only be considered if it can be demonstrated that proper procedure was not followed ; simply not being satisfied with the judge's decision, in and of itself, is not grounds for an appeal.
5. Possibly. You'd have to ask around to find out.

As hard as it may be for you to hear this answer and as unjust as it may seem the father still has rights. And courts are very reluctant to involuntarily take away those rights (as you have found out).

On the other hand, have you made any attempt to get the father to agree? Generally an absentee father, like you described, is usually willing to relinquish since the act of adoption will terminate any child support. So if his wages have been garnished for support, he can have that stopped once the adoption is final.

As far as the name, you can request that the school refer to your daughter by your husband's name except where a legal name is required. A person can use any name they want unless there is intent to defraud.

As for finding an attorney, shop around.

I see both points, but through reading the previous threads, I saw a lot of quesitons where women were trying to take rights away from their ex's and the answers from the 'experts' were that if there was a stepparent who wanted to adopt, they would make concessions. Several people reported, "they take unfit parents rights away everyday... they would consider stripping their rights if the absent parent was standing in the way of a stepparent adoption."

I was asking #1 because I am in a different county than before and I have now been married for 3 years vs. the one and he has been absent for 4 years versus the 1. Just made sense to ask.

ScottGem,

I have tried to get him to agree. Unfortunately he views her as property. It's really just a power struggle. He doesn't like me so he won't go along with anything I want. My poor daughter is the one who gets hurt.

I have a money judgement for back support in the amount of $9500. Even though he lives with his mother, has no license, job, etc etc... he won't consider signing off rights to be rid of that debt.

He doesn't want her- he hates me :(

The fact still remains that, if a biological parent is unwilling to consent to an adoption, then it's very hard to bring it about. Just because a parent doesn't have much contact with his/her child(ren) and/or doesn't pay much in child support doesn't necessarily make him/her "unfit" in the eyes of the law, to the point where a judge would compel him/her to involuntarily relinquish his/her rights.

I see both points, but through reading the previous threads, I saw a lot of quesitons where women were trying to take rights away from their ex's and the answers from the 'experts' were that if there was a stepparent who wanted to adopt, they would make concessions. Several people reported, "they take unfit parents rights away everyday... they would consider stripping their rights if the absent parent was standing in the way of a stepparent adoption."


I think you have misunderstood the answers you reviewed. If you look at the top of this forum, there is a sticky note I wrote that deals with this issue. The bottomline is that courts are VERY reluctant to issue a TPR (Termination of Parental Rights). Generally the courts will do so ONLY to clear the way for an adoption BUT only if the legal parent agrees. So adopting a stepchild is a two pronged process.

You might be able to involuntarily get a TPR if you can prove the legal parent is a danger to the child. But that is very difficult to do.

Many attorneys will give an initial free consult. So a local lawyer is better equipped to know the demeanor of the courts you will deal with and can better advise on your chances.

I know this is disheartening and I empathize with your daughter. But the law and case law is pretty clear here.

Ok, thanks for everyone's help. I really don't understand the law I guess. Why biology constitutes a parent even though they don't support a child financially or emotionally. Seems to me to be emotional abuse, neglect, abandonment... but I am on the receiving end of it as I watch my daughter question her right to be loved by this awful man. The law is there for a reaosn, even if it doesn't walk in my child's shoes so I will try to reason with him again. There has to be some way he will allow her to be happy. If the object isn't money- perhaps it's pride.

Thank you all again.

I would just like to point out that it is a GOOD thing that it is so hard to get a TPR.

Imagine if someone could turn that against YOU and take your kids away, based on what THEY think is best for the child--wouldn't that make you a little more cautious about the whole thing?

Involuntary TPRs are hard to get for a very good reason: to protect biological parents from involutarily losing their children.

Oh, and Mr. s_cianci:

"Just because a parent doesn't have much contact with his/her child(ren) and/or doesn't pay much in child support doesn't necessarily make him/her "unfit" in the eyes of the law, to the point where a judge would compel him/her to involuntarily relinquish his/her rights."

This is so sad :( I know this isn't your opinion necessarily- it is an interpretation of the law, but my gosh, a child needs face time to feel loved. It's just so sad...

Thank you for your submissions. You've been very helpful.

Oh, and Mr. s_cianci:

"Just because a parent doesn't have much contact with his/her child(ren) and/or doesn't pay much in child support doesn't necessarily make him/her "unfit" in the eyes of the law, to the point where a judge would compel him/her to involuntarily relinquish his/her rights."

This is so sad :( I know this isn't your opinion necessarily- it is an interpretation of the law, but my gosh, a child needs face time to feel loved. It's just so sad...

Thank you for your submissions. You've been very helpful.Well, on a strictly personal level I agree with you. But, as you know, the law is what it is and there's no way around it.

I agree with you to a point about TPR being difficult to get being a good thing and had her father been involved at all with her, or at least let me know why he couldn't (mental/emotional instability or whatever)- I wouldn't have this issue. I've always wanted him in her life- but if he didn't want to be, then let the man who wants to be her daddy, be her daddy.

But I cannot imagine a situation where I would not call my children or see them for 4 years. That's not a parent in my opinion- that's someone who doesn't care. Who is protecting the kids from the ones who don't care?

Oh, and Mr. s_cianci:

"Just because a parent doesn't have much contact with his/her child(ren) and/or doesn't pay much in child support doesn't necessarily make him/her "unfit" in the eyes of the law, to the point where a judge would compel him/her to involuntarily relinquish his/her rights."

This is so sad :( I know this isn't your opinion necessarily- it is an interpretation of the law, but my gosh, a child needs face time to feel loved. It's just so sad...

Thank you for your submissions. You've been very helpful.



Again - before you follow anyone's advice you CANNOT get this matter before a Judge in NYS unless and until all the documents are in order. If anyone else has info or a cite to the contrary, I'd like to see it.

I get called in to prove a parent is or isn't unfit on a fairly regular basis and fitness and support and all of that are side issues and the matter cannot get before a Judge when a potential adoption is being considered.

I can only speak for NY but a parent must present a danger to the child before he/she is stripped of his/her parental rights. Nothing else matters, including incarceration.

Situations change and I appreciate that but I always question how sensible people have children in these situations - was the father always like this, did he change when the child was born? Your experience could very well help someone else.

1. You can probably get a judge to "hear your case" but I wouldn't count on getting any different of an outcome than you have in the past. Bottom line, if the bio dad won't consent to the adoption, then it won't happen. You were already told that by one judge and there's no reason to believe that another judge will tell you something different.


I don't think this is incorrect, but I believe it does require clarification. Before anyone can get a case on the docket, especially in NYS, proper documentation needs to be presented to the court clerk. The clerk will generally reject a request for a hearing if the paperwork has not been prepared properly. If the case has already been heard and circumstances have not materially changed, then the likelihood is that it will not get on the docket. But if you can show some material change (i.e. agreement from the father, psych eval of your daughter showing harm being caused by the different names, lack of support from the father) and document it properly, then there is a chance you may get a new hearing.

But this all points to getting an attorney to prepare all the paperwork.

Best answer for this question is that I was inexperienced and didn't see the warning signs. I was abused as a child and I guess looking for someone who cared. I grew up in a small town, met him when we were 10, dated at 16, married at 21. He joined the armed forces and was subsequently kicked out. He was pretty controlling- I wasn't aloud to have friends, he would come to my job to make sure I was there. We were about to go separate ways when I realized I was pregnant, and foolishly tried to 'work it out'. When my daughter was at 8 months gestation, he declared marriage wasn't as much fun as he thought it would be and revealed he was seeing someone else. He told me to go move in with my mother, which I did. Then I went to college- he didn't. I got a great job- he didn't. I married a great man- he is still alone. And I expanded my family- he did as well, but he sees neither of those daughters either.

I was pretty naïve and he was a good manipulator. Years after we separated, his brother told me he had cheated on me from day 1, he was seriously into drug use and drinking the whole time. I was young and naïve but I regret nothing. Those bad experiences sculpted the good person I am today and without it, I may not appreciate all of the good things in my life. That was the ultimate learning experience for me, and my daughter thankfully, doesn't suffer much because as I said- he is not involved with her and with my husband's love and attention- she doesn't feel at a loss, except where her name comes in.

My ex husband was ordered to take a psych eval where it was revealed that he should not be near children, period. He was found to be a narcisistic borderline personality with a substance abuse and anger management problem.

I understand the law is what it is, but what I don't understand is why the judge will not hear me? I respect that TPR should be highly restricted but I also believe there is an exception to every rule and if my daughter's case was heard, perhaps they will help spare her quality of life as far as her self esteem goes. Sometimes she asks me why her other daddy doesn't like her and what she did wrong to make him stay away? I say the only sensible thing that comes to mind: " He loves you very much and I'm sure he has a good reason, but you didn't do anything wrong." It hurts me to say that to her, but at least she is spared some guilt. She hasn't asked in a long time- out of sight out of mind. My husband makes sure she knows how important and special she is and other than her name, she feels no different than her siblings. She knows pieces of the situation such as how she has two dads, because I feel if she is old enough to ask a question, she is old enough to hear the truth (modified only by her age and appropriateness). However, with the question of why he behaves the way he does, the only thing I can say is 'it's not your fault' to spare her guilty feelings.

Sorry, I am rambling and I'm sure this wasn't what you are looking for. Short answer I guess is because of previous abuse, I allowed him to treat me unfairly, when I had my daughter, I wanted better for her so when he presented the opportunity to leave I did and I didn't look back. I thought he was tired of me, but never imagined he would have treated his own child this way. Maybe it was again my naiveness, but he had seen other young parents our age neglect their own kids and vowed to me it wouldn't be like that. He may have hurt me, but I won't let him hurt her. If he would seriously make a commitment to straighten up, get clean, be responsible and be there for her consistently, I would not hold them back. But I know he isn't capable of that kind of love for someone else. Even if it is his own child. And my daughter deserves a great dad.

This is exactly what I am looking for - it helps explain how these things happen, serves as a warning to anyone who may even be considering these situations.

My ex-husband was abusive so I know how easy it is to get sucked in, not see the pattern.

Sounds like you have gotten over and beyond this and are in a good, happy place.

I wish you well and thank you so much for this post. It should be carved in stone and handed to half the teens who post!

Scottgem,

Wow, you know, now that I think of it, it may have been rejected because it was improperly done. We didn't have a lawyer the first time - only followed advise from legal aid. Perhaps, if we get a lawyer, file paperwork correctly and we submit the doctor's findings as far as my daughters' emotional struggle with her name and his lack of involvement, AND I send my ex husband a certified letter pleading her case and asking again for his blessing and outline the effect it is having on her, maybe he will reconsider. OR maybe he will find it in his heart to be a real dad to her and be consistent in her life. Either way- that's better for her than the current situation. I won't hold my breath, but everyone has given me a dash of hope for her.

Thank you everyone! I'll definitely tell my friends and family about this site. :)

JudyKayTee,

Boy it felt good to get all of that off my chest! Thank you for all of your feedback. I feel really guilty for falling for the trap as it were. He really had me going and he wasn't very physically abusive, but I definitely walked on eggshells around him.

Bc of all of that though, I appreciate my husband so much! He is absolutely my best friend and my children adore him and he adores them.

Everything is very wonderful, except every once in a while, my oldest becomes saddened by my mistake. Breaks my heart. I would love to speak to teens of the different types of abuse- it's not always about being beaten. As a child, I was molested by my stepfather. I didn't know it was wrong because in school, they taught me that if a stranger touches you or someone other than your parents- that's bad. No one ever said what to do if it was your parents. As teenagers, they don't realize that someone doesn't have to strike you to be abusive. Making you feel bad, withholding love, calling names- it's all abuse.

My father signed off rights because he wanted me to have a 'real family' and my stepfather adopted me when I was 5. I guess that's why all of this is confusing. If a bad person like him adopted me, why can't a wonderful person like my husband adopt my daughter? But I do understand that the law is what it is and I can't change it as much as I wish I could.

I will get in touch with a local lawyer and have them assist with writing a letter to my ex as well as preparing paperowrk and figuring the odds to keep my daughter's welfare in the forefront. I have a feeling this can get pretty ugly. Thanks again!

I wish you luck - keep us informed.

I don't think this is incorrect, but I believe it does require clarification. Before anyone can get a case on the docket, especially in NYS, proper documentation needs to be presented to the court clerk. The clerk will generally reject a request for a hearing if the paperwork has not been prepared properly. If the case has already been heard and circumstances have not materially changed, then the likelihood is that it will not get on the docket. But if you can show some material change (i.e. agreement from the father, psych eval of your daughter showing harm being caused by the different names, lack of support from the father) and document it properly, then there is a chance you may get a new hearing.

But this all points to getting an attorney to prepare all the paperwork.




Respectfully disagree, Scott - we are talking about an adoption. No way is a potential adoption getting on the calendar unless/until all the paperwork is submitted.

Material change is out of the ballpark because it's an adoption, not a request for a change in custody or support or an attempt to strip the father of his rights.

If I am reading this wrong, happy to stand corrected. I do see you may be referring to the order to remove parental rights and I may be talking about adoption.

Maybe - ?

I never actually went before a judge. My husband and I submitted paperwork and we received a letter from the court stating it would not be heard. This was a couple of years ago, so I don't recall the specifics of the letter.

If we were to file for adoption on the grounds of her distress, would we be better off or would it make sense to bring my ex to court to present the facts and have them determine what's best for her welfare? Of course, I mean AFTER I have asked him for his consent. Whatever your answer I will seek the advice of an attorney before filing any paperwork.

Thanks!

You cannot have your present husband adopt without the consent of her father - the distress of the child does not matter.

If he DOES consent you don't need a reason - it's "just" an adoption.

I consulted with a lawyer in my area who said we would absolutely be able to bring an adoption case and would most likely prevail on grounds of abandonment. He said in NYS no contact after 6 months is legal abandonment and since I have been remarried longer than 6 months (3 years) it would be an easy decision for a judge to allow my husband to adopt.

We will consult with a few more lawyers in our area to see what the consensus is, however, because we have heard from many sources that an adoption is not possible without consent.

Thanks!

I consulted with a lawyer in my area who said we would absolutely be able to bring an adoption case and would most likely prevail on grounds of abandonment. He said in NYS no contact after 6 months is legal abandonment and since I have been remarried longer than 6 months (3 years) it would be an easy decision for a judge to allow my husband to adopt.

We will consult with a few more lawyers in our area to see what the consensus is, however, because we have heard from many sources that an adoption is not possible without consent.

Thanks!



I am also in NYS and respectfully disagree - please keep us informed.

If the Attorney provided you with a citation or case law, please post it.

I do not believe you can strip a father of his rights so I am eager to find out what you learn.

So far, two more local lawyers agree. I'll see why they are so confident. Thanks!

Yes please ask them to cite the statute or case law that support their confidence.

I might agree with them if you did not know where the father was or had no contact with him, but by your admission that's not the case. If the father chooses to show up in court and protest the adoption, then I doubt if it will be granted. What is more likely to happen is the court will order him to demonstrate his willingness to be a father for a period. After that time the adoption petition may be revisited.

New York State

Statute: Soc. Serv. Law §§384-b; 358-a(3)(b)

Grounds: Abandonment or extreme parental disinterest, abuse/neglect, mental illness or deficiency, alcohol or drug induced incapacity, felony conviction/incarceration, failure of reasonable efforts, abuse/neglect or loss of rights of another child, failure to maintain contact, failure to provide support, child judged in need of services/dependent, child's best interest, child in care 15 of 22 months (or less), felony assault of child or sibling, murder/manslaughter of sibling child, both parents dead and guardian not appointed, aggravated circumstances.

Exceptions: State may elect not to file petition if: 1) child being cared for by relative; 2) agency has documented in the most recent case plan, a copy of which has been made available to the court, a compelling reason for determining that the filing of a petition would not be in the best interest of the child – such compelling reasons include, but are not limited to: a) the child was placed into foster care pursuant to Article Three (Juvenile Delinquency) or Article Seven (Persons in Need of Supervision) of the Family Court Act and a review of the specific facts and circumstances of the child's placement demonstrate that the appropriate permanency goal for the child is either (1) return to his or her parent or guardian or (2) discharge to independent living; b) the child has a permanency goal other than adoption; c) the child is fourteen years of age or older an will not consent to is or her adoption; d) there are insufficient grounds for filing a petition to TPR, and e) the child is the subject of a pending disposition under Article 10 (Child Protective Proceedings) of the Family Court Act, except where such child is already in custody of the commissioner of social services as a result of a proceeding other than the pending Article 10 proceeding, and a review of the specific facts and circumstances of the child's placement demonstrate that the appropriate permanency goal for the child is discharge to his or her parent or guardian; 3) agency has not provided to the parent services as it deems necessary for safe return of child to the parents, unless such services are not legally required.

The above was something I found. I haven't heard back from the lawyers yet

Oh, and I don't know where he is and haven't spoken to him in years. But I do know his brother and even though he doesn't speak to him, he may be able to get me a number or address so I can ask him for consent again.

The last time I asked was 3 years ago and he said no.

New York State

Statute: Soc. Serv. Law §§384-b; 358-a(3)(b)



The way I read that is that there are plenty of exceptions, the top one being the child is already being cared for by a relative. Certainly doesn't give me confidence that you would get an involuntary TPR.

Abandonment in NY is leaving a child unattended at a bus stop - I don't see leaving the child with a loving mother as abandonment but, again, if a total of 3 Attorneys have told you it IS abandonment, I would like the details.

I investigate these cases in NY, am very familiar with the judicial system and would like to be better informed.

Ok, the lawyer gave me this: Domestic Relations Law § 111. Whose consent required. (d)

This section in particular:
(d) Of the father, whether adult or infant, of a child born
Out-of-wedlock and placed with the adoptive parents more than six months
After birth, but only if such father shall have maintained substantial
And continuous or repeated contact with the child as manifested by: (I)
The payment by the father toward the support of the child of a fair and
Reasonable sum, according to the father's means, and either (ii) the
Father's visiting the child at least monthly when physically and
Financially able to do so and not prevented from doing so by the person
Or authorized agency having lawful custody of the child, or (iii) the
Father's regular communication with the child or with the person or
Agency having the care or custody of the child, when physically and
Financially unable to visit the child or prevented from doing so by the
Person or authorized agency having lawful custody of the child.

Now I am more confused than ever - the child was not "placed" with adoptive parents. Hasn't the child always been with you, the natural mother and weren't you married - I don't see how this applies: "Of the father, whether adult or infant, of a child born
out-of-wedlock and placed with the adoptive parents more than six months after birth".

Actually that section doesn't apply at all. But this section may:

2. The consent shall not be required of a parent or of any other
person having custody of the child:
(a) who evinces an intent to forego his or her parental or custodial
rights and obligations as manifested by his or her failure for a period
of six months to visit the child and communicate with the child or
person having legal custody of the child, although able to do so; or

The problem here is that the father may not qualify since he may not be considered to have custody. But the way I read it, is that consent is not required of a parent who shows he doesn't intend to be a parent.

But that parent still will need to be informed of the adoption and if he protests, then its unlikely the court will grant it until he shows he doesn't want to be a parent after protesting.

I see absolutely no possibility that the adoption petition will be granted unless/until the natural father consents. NYS Courts - as we know - are most reluctant to strip parents of their rights, no matter what the circumstances are.

I hope I am wrong for the sake of the OP but I see nothing being accomplished without that consent.

Yea- I intend to seek his consent initially anyway. Perhaps he will have a change of heart. I know his true intentions are not to be a parent to my daughter, so perhaps there is a way to convince him to dp what's right. Thanks!

Please come back and let us know how this works out - I know I'll learn something from all you've posted and what happens next.

Fingers crossed that it will work out for you!

Yea- I intend to seek his consent initially anyways. Perhaps he will have a change of heart. I know his true intentions are not to be a parent to my daughter, so perhaps there is a way to convince him to dp what's right. Thanks!

Let me add something here. Many states have laws like the ones you cited. But those rules are generally considered guidelines for the courts, not hard and fast rules. The practical matter here is that Family Courts in the US are VERY reluctant to issue an involuntary TPR. There would need to be a very compelling reason for them to do so. Having said that, courts do differ from jurisdiction to jurisdiction. Your attorney may be familiar with the local judges and the way they rule. That may be part of their confidence.

So please do let us know how it works out for you.