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Originally Posted by ScottGem

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.

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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!

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Originally Posted by abeagley

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!

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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.

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Originally Posted by abeagley

New York State

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

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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!

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Originally Posted by abeagley

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!

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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.