After Paternity is Established, Can Father Surrender Rights and Another Man Adopt?

[mommandaddy]

My question involves paternity law for the State of: NY

We (myself and my son's donor) are going to court for paternity in NY state. The county wants to get child support for my youngest. His "donor" wants nothing to do with him and has stated this a number of times. The county finally found him and started the paternity proceedings. We have a test set for the 8th of July. He has known about the pregnancy from day 1. We split when I was 6 months pregnant. Since then he kept trying to get me to give up my child (adoption). But I couldn't do it. My son is now 14 months. It took us this long to find him.

Regardless of the fact that he lied about fertility (vasectomy) and keeps refusing responsibility, does the state have the right to force him to keep his paternal rights if he does not want to? My son is on Medicaid.

Also, my SO wants to adopt him. Donor has asked me a number of times if I have found someone to adopt my son, and I told him that SO would, but only if we both knew that he truly wanted to sign off all rights and allow SO to adopt my son. Not until then. SO and I are not married yet, but plan to be.

I know that money is the main reason why Donor wants to sign off. If SO adopts him, will Donor still be responsible for my son financially? Or will he still be responsible for arrears from the application date of the paternity? Would SO be responsible for the past child support that they are trying to get even if SO and I live together?


Thanks so much

[cyjeff]

My question involves paternity law for the State of: NY

We (myself and my son's donor) are going to court for paternity in NY state. The county wants to get child support for my youngest. His "donor" wants nothing to do with him and has stated this a number of times. The county finally found him and started the paternity proceedings. We have a test set for the 8th of July. He has known about the pregnancy from day 1. We split when I was 6 months pregnant. Since then he kept trying to get me to give up my child (adoption). But I couldn't do it. My son is now 14 months. It took us this long to find him.

Regardless of the fact that he lied about fertility (vasectomy) and keeps refusing responsibility, does the state have the right to force him to keep his paternal rights if he does not want to? My son is on Medicaid.

Also, my SO wants to adopt him. Donor has asked me a number of times if I have found someone to adopt my son, and I told him that SO would, but only if we both knew that he truly wanted to sign off all rights and allow SO to adopt my son. Not until then. SO and I are not married yet, but plan to be.

I know that money is the main reason why Donor wants to sign off. If SO adopts him, will Donor still be responsible for my son financially? Or will he still be responsible for arrears from the application date of the paternity? Would SO be responsible for the past child support that they are trying to get even if SO and I live together?


Thanks so much

You usually have to be married to the adoptive parent for a year before a judge will even listen to the petition for adoption.

And yes... the court is going to make you get married if you want to adopt. There is some logic in making sure that people that are going to be raising a child together commit to one another legally.

And yes, the state will bill him for the help you receive until another suitable father decides to assume the responsibility.

[mommandaddy]

Thanks for the reply.

"And yes... the court is going to make you get married if you want to adopt. There is some logic in making sure that people that are going to be raising a child together commit to one another legally."

I understand the logic to being married first. It makes sense and in a perfect world, with out my prior mistakes of trusting a man that said that he was sterile by vasectomy, it would be that way. And if marriage happens soon with SO, then wonderful. But right at this moment, now, before we are married, is what I was referring to.

Yet the "logic in making sure that people that are going to be raising a child together commit to one another legally" obviously can not and will not happen in this particular situation. If you are referring to marriage of SO and I, that is not a problem. If you are referring to Donor, then it is impossible and unrealistic. The Donor doesn't even desire to see the child let alone be a "father" to him. And when any person is forced to do anything against their will, including this, it causes resentment. That resentment will be passed on toward that child. And for a child, I do not see how that is in their best interest. But I could be wrong. Maybe my morale is off. Then again legality and morale are definitely not even in the same realm in my mind.

The man that wants to adopt the child (SO) desires the child, married to me or not. He is a good man who has supported my son from the day he was born. Emotionally, physically (health) and financially. He was there while he was ill for months. He was there during the tests that had to be done to find out what his issues were. He was there to buy diapers, clothes and meds if needed. Up all hours of the night with him. The "system" knows this. Maybe there is an exception to the rule? Is it possible? That potential possibility of SO adopting my son is what I am wondering about.

I refer to the paternal father as the Donor because that is what he is. Aside from a petri dish and a few thousand dollars paid to a doctor, there is no difference. Donor wants NOTHING to do with my son. Donor has asked numerous times to see if I could find someone to adopt him. He has even gone as far as to ask if my parents would adopt my son for me!. Never asked to see him or when he was born.
Never asked if he was a boy or girl for that matter. He found out by the court papers served to his step-father as he was avoiding (hiding from) the system.

By no means am I trying to take Donor's rights away from him. They were available the moment I gave birth to my son. I contacted him to let him know that "the baby was born." Worded that way to give him the opportunity to show interest. Only by email, because I have no other contact information. Even now until I get the new court papers do I have no way to contact him other than email. And even still he has every right to see him at any moment in time. I have plenty of documented proof, though not "notarized", to prove this fact. I have asked him what he wants to do over and over again. HE WANTS TO SIGN OFF AND FOR SO TO ADOPT HIM.

I am not going to be overly kind to this man and bend over backwards to try and get him to see that he really does want to be my son's father. I am not going to sugar coat any thing for him. I am not going to make things easier for him either. It is his choice, not mine, whether or not he wants those rights. Regardless of if he pays or not. If he wants rights, I am not trying to take them in any way. He can have them. But, is it in the best interest for the child to force someone to be responsible that does not want to in any way when another is more than willing to do so?

Though I am not genius or incredibly intelligent, I am not completely unlearned. And I am here looking for legal advice, not moral teachings. I thought that is what this forum was for. If I am wrong, then I will gladly leave here and find help elsewhere.

Still, I greatly appreciate legal advice on this subject.


That being said, I hope no offense taken.

[Rushia]

The advice you got was legally correct even if you didn't like it. You have to be married to your SO for at least one year before you can even file the petition for stepparent adoption.

The states want their money and they will get it from the father. As soon as your HUSBAND adopted your child, your ex will no longer be financially responsible for the child as he will no longer LEGALLY be the father. He may have to continue to pay arrears from the time started until the day of the adoption but thats about it.

[cyjeff]

There was no moralistic bent in anything I said.

No judge will allow your SO to adopt your child without the legal commitment necessitated by marriage.

That is simply the way of things.

I understand you want the biodad out of the picture. Great. I gave you the roadmap to do that.

If you don't want to marry your SO, get used to the biodad being in the child's life.

Those are your options.

[aaron]

In New York, there is no requirement that people be married a year before they adopt.

An adult unmarried person or an adult husband and his adult wife together may adopt another person. An adult married person who is living separate and apart from his or her spouse pursuant to a decree or judgment of separation or pursuant to a written agreement of separation subscribed by the parties thereto and acknowledged or proved in the form required to entitle a deed to be recorded or an adult married person who has been living separate and apart from his or her spouse for at least three years prior to commencing an adoption proceeding may adopt another person; provided, however, that the person so adopted shall not be deemed the child or step-child of the non-adopting spouse for the purposes of inheritance or support rights or obligations or for any other purposes. An adult or minor husband and his adult or minor wife together may adopt a child of either of them born in or out of wedlock and an adult or minor husband or an adult or minor wife may adopt such a child of the other spouse. No person shall hereafter be adopted except in pursuance of this article, and in conformity with section three hundred seventy-three of the social services law.

An adult married person who has executed a legally enforceable separation agreement or is a party to a marriage in which a valid decree of separation has been entered or has been living separate and apart from his or her spouse for at least three years prior to commencing an adoption proceeding and who becomes or has been the custodian of a child placed in their care as a result of court ordered foster care may apply to such authorized agency for placement of said child with them for the purpose of adoption. Final determination of the propriety of said adoption of such foster child, however, shall be within the sole discretion of the court, as otherwise provided herein.

Adoption is the legal proceeding whereby a person takes another person into the relation of child and thereby acquires the rights and incurs the responsibilities of parent in respect of such other person.

A proceeding conducted in pursuance of this article shall constitute a judicial proceeding. An order of adoption or abrogation made therein by a surrogate or by a judge shall have the force and effect of and shall be entitled to all the presumptions attaching to a judgment rendered by a court of general jurisdiction in a common law action.

No adoption heretofore lawfully made shall be abrogated by the enactment of this article. All such adoptions shall have the effect of lawful adoptions hereunder.

Nothing in this article in regard to a minor adopted pursuant hereto inheriting from the adoptive parent applies to any will, devise or trust made or created before June twenty-fifth, eighteen hundred seventy-three, nor alters, changes or interferes with such will, devise or trust. As to any such will, devise or trust a minor adopted before that date is not an heir so as to alter estates or trusts or devises in wills so made or created. Nothing in this article in regard to an adult adopted pursuant hereto inheriting from the adoptive parent applies to any will, devise or trust made or created before April twenty-second, nineteen hundred fifteen, nor alters, changes or interferes with such will, devise or trust. As to any such will, devise or trust an adult so adopted is not an heir so as to alter estates or trusts or devises in wills so made or created.

It shall be unlawful to preclude a prospective adoptive parent or parents solely on the basis that the adoptor or adopters has had, or has cancer, or any other disease. Nothing herein shall prevent the rejection of a prospective applicant based upon his or her poor health or limited life expectancy.

[Rushia]

Aaron, I live in NY and I can tell you that no judge will allow this to happen without a father to step up to the plate. I'm reading what you posted and I'm not seeing where it says that you don't have to be married.

ETA: I should say a stepfather. The state wants two people responsible for the child. It usually wants either a biomother and biofather or a married couple. I have talked with lawyers about it and read up myself. I have not seen one lawyer in my area who will attempt it without the marriage.

[aaron]

In terms of unmarried people adopting? "An adult unmarried person or an adult husband and his adult wife together may adopt another person."

What judges may be inclined to do is one thing, and I make no claim to be familiar with the practices of family courts throughout the state of New York; but the law has no requirement of a year or more of marriage.

[Rushia]

In terms of unmarried people adopting? "An adult unmarried person or an adult husband and his adult wife together may adopt another person."

What judges may be inclined to do is one thing, and I make no claim to be familiar with the practices of family courts throughout the state of New York; but the law has no requirement of a year or more of marriage.

I saw that and I take that to mean that unmarried people or a married couple adopting a child completely unknown to them. All stepparent adoption sites (legal or otherwise) state (depending on the state) anything from 6 months to a year of marriage before adoption. All NY sites say 1 year, all attornies I've spoken with say 1 year, judges say 1 year.

Is it possible that this is just a guidline made by judges themselves rather than a law? Perhaps it's one of those best interest things? Judges get away with alot under best interests.

[aaron]

A stepparent is not an unmarried person. I'm not sure why we're digressing in that direction. There's also no requirement in the statute that the child to be adopted be unknown to the prospective adoptive parent, nor would such a requirement make any sense.

It makes sense to be familiar with local family court practices in relation to any family court matter - custody, adoption, divorce, etc. - before filing an action with the court.