2023 New York Laws › SOS - Social Services › Article 6 - Children › Title 1 - Care and Protection of Children › 384 - Guardianship and Custody of Children Not in Foster Care.

§  384.  Guardianship  and  custody of children not in foster care. 1.
Method. The guardianship of the person and the custody of a child who is
not in foster care under the age of eighteen years may be  committed  to
an  authorized  agency by a written instrument which shall be known as a
surrender, and signed:
(a) if both parents shall then be  living,  by  the  parents  of  such
child,  or  by  the  surviving parent, if either parent of such child be
dead;
(b) if either one of such parents shall  have  for  a  period  of  six
months  then  next  preceding abandoned such child, by the other of such
parents;
(c) if such child is born out of wedlock, by the mother of such child,
and by the father of such child,  if  such  father's  consent  would  be
required  for  the  child's  adoption,  pursuant  to section one hundred
eleven of the domestic relations law;
(d) if both parents of such child are dead, or if such child  is  born
out  of  wedlock and the mother of such child is dead by the guardian of
the person of such child lawfully appointed, with the  approval  of  the
court or officer which appointed such guardian to be entered of record.
2.  Terms.  (a)  Such  guardianship  shall  be  in accordance with the
provisions of this article and the instrument shall be upon  such  terms
and  subject  to  such  conditions  as may be agreed upon by the parties
thereto. The instrument shall  recite  that  the  authorized  agency  is
thereby  authorized  and  empowered  to  consent to the adoption of such
child in the place and stead of the person signing the  instrument,  and
may  recite  that the person signing the instrument waives any notice of
such adoption; provided, however, that an authorized  agency  shall  not
accept  a surrender instrument conditioned upon adoption by a particular
person, unless the  agency  has  fully  investigated  and  certified  or
approved  such  person  as  a  qualified  adoptive parent. Any surrender
instrument subject to the provisions of this section  shall  include  an
adoption  information  registry  birth parent registration consent form,
stating whether or not such biological parent or parents  whose  consent
is subject to the provisions of this section, consents to the receipt of
identifying  information  by  the child to be adopted, upon registration
with the adoption information registry established by section  forty-one
hundred  thirty-eight-c  of  the  public health law and upon the adoptee
reaching the age of eighteen. If such  consent  is  made,  it  shall  be
revocable  by  either  of  the  biological  parents  at  any  time.  The
revocation of the consent by one of the parents shall revoke the consent
of both parents.  The failure of a biological  parent  to  complete  the
consent  form  shall  have  no  effect on the finality of the consent to
adoption. A copy of the form required  by  this  subdivision,  shall  be
forwarded  to  the  state adoption information registry for inclusion in
the records maintained by such  registry.  Any  fees  authorized  to  be
charged  by  the  state  adoption registry for filing documentation with
such registry shall be waived for the form required by this subdivision.
No such agency shall draw or receive money from  public  funds  for  the
support of any such child except upon the written order or permit of the
local  social  services  official  of  the  county  or city sought to be
charged with the support of such child.
(b) If a  surrender  instrument  designates  a  particular  person  or
persons  who  will  adopt  a  child, such person or persons, the child's
birth parent or parents, the authorized agency having care  and  custody
of  the  child  and  the  child's  attorney,  may  enter  into a written
agreement providing for communication or contact between the  child  and
the  child's  parent  or  parents on such terms and conditions as may be
agreed to by the parties.
If a surrender instrument does not designate a  particular  person  or
persons  who  will  adopt  the  child,  then the child's birth parent or
parents, the authorized agency having care and custody of the child  and
the  child's  attorney  may enter into a written agreement providing for
communication  or contact, on such terms and conditions as may be agreed
to by the parties. Such agreement also may provide terms and  conditions
for  communication  with  or  contact  between the child and the child's
biological sibling or half-sibling, if  any.  If  any  such  sibling  or
half-sibling  is  fourteen  years  of  age  or  older,  such  terms  and
conditions shall not be enforceable unless such sibling or  half-sibling
consents  to  the  agreement  in  writing. If the court before which the
surrender instrument is  presented  for  approval  determines  that  the
agreement  concerning  communication  and contact is in the child's best
interests, the court shall approve the agreement. If the court does  not
approve  the agreement, the court may nonetheless approve the surrender;
provided, however, that  the  birth  parent  or  parents  executing  the
surrender  instrument  shall  be  given  the opportunity at that time to
withdraw such instrument. Enforcement of  any  agreement  prior  to  the
adoption  of  the  child  shall be in accordance with subdivision (b) of
section one thousand fifty-five-a of the family court act. Subsequent to
the adoption of the child, enforcement of  any  agreement  shall  be  in
accordance  with  section one hundred twelve-b of the domestic relations
law.
3. Instrument. The instrument herein provided shall  be  executed  and
acknowledged  (a)  before  any  judge  or surrogate in this state having
jurisdiction over adoption proceedings, except  that  if  the  child  is
being  surrendered  as  a result of, or in connection with, a proceeding
before the family court pursuant to article ten or ten-A of  the  family
court  act,  the  instrument  shall  be executed and acknowledged in the
family court that exercised jurisdiction over such proceeding and  shall
be  assigned,  wherever practicable, to the judge who last presided over
such proceeding; or (b) in the presence of one  or  more  witnesses  and
acknowledged  by  such witness or witnesses, in the latter case before a
notary public or other officer authorized to take proof  of  deeds,  and
shall  be recorded in the office of the county clerk in the county where
such instrument is executed, or  where  the  principal  office  of  such
authorized  agency  is  located, in a book which such county clerk shall
provide and shall keep under seal.  Such  record  shall  be  subject  to
inspection  and  examination  only as provided in subdivisions three and
four of section three hundred seventy-two of this title. Notwithstanding
any other provision of law, if the parent  surrendering  the  child  for
adoption  is  in  foster  care the instrument shall be executed before a
judge of the family court.
Whenever the term surrender or surrender instrument is used in any law
relating to the adoption of children who are  not  in  foster  care,  it
shall mean and refer exclusively to the instrument hereinabove described
for  the commitment of the guardianship of the person and the custody of
a child to an authorized agency by his parents, parent or guardian;  and
in  no  case shall it be deemed to apply to any instrument purporting to
commit the guardianship of the person and the custody of a child to  any
person  other  than  an  authorized  agency,  nor shall such term or the
provisions of  this  section  be  deemed  to  apply  to  any  instrument
transferring  the  care  and  custody of a child to an authorized agency
pursuant to section three hundred eighty-four-a of this chapter.
Any person or persons having custody of a child  for  the  purpose  of
adoption  through an authorized agency shall be permitted as a matter of
right, as an interested party, to intervene in any proceeding  commenced
to  set  aside  a  surrender  purporting to commit a guardianship of the

person or custody of a child  executed  under  the  provisions  of  this
section.  Such  intervention may be made anonymously or in the true name
of said person.
Any  person  or  persons  having  custody  for more than twelve months
through an authorized agency for the purpose of  foster  care  shall  be
permitted  as a matter of right, as an interested party, to intervene in
any proceeding commenced to set aside a surrender purporting  to  commit
the guardianship of the person and custody of a child executed under the
provisions of this section. Such intervention may be made anonymously or
in  the  true name of said person or persons having custody of the child
for the purpose of foster care.
A copy of such surrender shall be given to  such  surrendering  parent
upon  the  execution  thereof. The surrender shall include the following
statement:  "I,  (name  of  surrendering  parent),  this  ___   day   of
__________, _____, have received a copy of this surrender. (Signature of
surrendering parent)". Such surrendering parent shall so acknowledge the
delivery and the date of the delivery in writing on the surrender.
Where  the  parties have agreed that the surrender shall be subject to
conditions pursuant to subdivision two of this section,  the  instrument
shall further state in plain language that:
(i)  the authorized agency shall notify the parent, unless such notice
is expressly waived by a statement written by the parent and appended to
or included in such instrument, the attorney for the child and the court
that approved the  surrender  within  twenty  days  of  any  substantial
failure   of  a  material  condition  of  the  surrender  prior  to  the
finalization of the adoption of the child; and
(ii) except for good cause shown, the authorized agency shall  file  a
petition  on notice to the parent unless notice is expressly waived by a
statement written by the parent and appended  to  or  included  in  such
instrument  and  the  child's  attorney  in  accordance with section one
thousand fifty-five-a of the family court act within thirty days of such
failure, in order for the  court  to  review  such  failure  and,  where
necessary, to hold a hearing; provided, however, that, in the absence of
such  filing,  the  parent and/or attorney for the child may file such a
petition at any time  up  to  sixty  days  after  notification  of  such
failure.  Such petition filed by a parent or attorney for the child must
be filed prior to the child's adoption; and
(iii) the parent is obligated to provide the authorized agency with  a
designated  mailing  address,  as well as any subsequent changes in such
address,  at  which  the  parent  may  receive  notices  regarding   any
substantial failure of a material condition, unless such notification is
expressly waived by a statement written by the parent and appended to or
included in such instrument.
Nothing  in  this  paragraph  shall limit the notice on the instrument
with respect to a failure to comply  with  a  material  condition  of  a
surrender subsequent to the finalization of the adoption of the child.
4. Upon petition by an authorized agency, a judge of the family court,
or  a  surrogate,  may  approve  such  surrender, on such notice to such
persons as  the  surrogate  or  judge  may  in  his  or  her  discretion
prescribe.  If  the  child  is  being  surrendered as a result of, or in
connection with, a  proceeding  before  the  family  court  pursuant  to
article  ten  or  ten-A  of  the family court act, the petition shall be
filed  in  the  family  court  that  exercised  jurisdiction  over  such
proceeding and shall be assigned, wherever practicable, to the judge who
last  presided  over  such  proceeding. The petition shall set forth the
names and last known addresses of  all  persons  required  to  be  given
notice   of   the   proceeding,   pursuant   to  section  three  hundred
eighty-four-c of this title, and there shall be shown by the petition or

by affidavit or other proof satisfactory to the court that there are  no
persons  other  than those set forth in the petition who are entitled to
notice pursuant to such section. No person who has received such  notice
and  been afforded an opportunity to be heard may challenge the validity
of a surrender approved  pursuant  to  this  subdivision  in  any  other
proceeding.  However,  this  subdivision  shall not be deemed to require
approval of a surrender by a surrogate or judge for such surrender to be
valid.
5. If a duly executed and acknowledged  adoption  surrender  shall  so
recite,  no  action  or proceeding may be maintained by the surrendering
parent or guardian for the custody of the surrendered child or to revoke
or annul such surrender where the child has been placed in the  home  of
adoptive  parents  and  more  than  thirty  days  have elapsed since the
execution of the surrender or  where  the  purpose  of  such  action  or
proceeding  is to return the child to or vest the child's custody in any
person other than the parent or guardian who  originally  executed  such
surrender. This subdivision shall not bar actions or proceedings brought
on  the  ground  of  fraud,  duress  or  coercion  in  the  execution or
inducement of a surrender.
For the purposes of this subdivision, no child shall be deemed to have
been placed in the home of adoptive parents  unless  the  fact  of  such
placement,  the  date  thereof,  the  date  of  the agreement pertaining
thereto and the names and addresses of the adoptive parents  shall  have
been recorded in a bound volume maintained by the agency for the purpose
of recording such information in chronological order.
Where  the  parties have agreed that the surrender shall be subject to
conditions pursuant to subdivision two of this section and  where  there
has  been  a  substantial  failure  of a material condition prior to the
finalization of the adoption of the child, the agency shall  notify  the
parent  thereof,  unless  such notice is expressly waived by a statement
written by the parent and appended to or included  in  such  instrument,
and  shall  notify  the  court and the law guardian for the child within
twenty days of such failure. In any such  case,  the  authorized  agency
shall file a petition on notice to the parent unless notice is expressly
waived  by a statement written by the parent and appended to or included
in such instrument and law  guardian  in  accordance  with  section  one
thousand fifty-five-a of the family court act within thirty days of such
failure,  except  for good cause shown, in order for the court to review
such failure and, where necessary, to hold a hearing; provided, however,
that, in the absence of such a filing, the parent  and/or  law  guardian
for  the  child  may  file  such a petition at any time up to sixty days
after notification of the failure. Such a petition filed by a parent  or
law  guardian  must  be  filed  prior  to  the adoption. Nothing in this
paragraph shall limit the rights and remedies available to  the  parties
and  the  law  guardian  pursuant to section one hundred twelve-b of the
domestic relations law with respect  to  a  failure  to  comply  with  a
material  condition of a surrender subsequent to the finalization of the
adoption of a child.
6. In an action or proceeding to determine the custody of a child  not
in  foster  care surrendered for adoption and placed in an adoptive home
or to revoke or annul a surrender instrument in the case of  such  child
placed  in  an adoptive home, the parent or parents who surrendered such
child shall have no right to the custody of such child superior to  that
of  the adoptive parents, notwithstanding that the parent or parents who
surrendered the child are fit, competent  and  able  to  duly  maintain,
support  and  educate  the  child.  The  custody  of such child shall be
awarded solely on the basis of the best  interests  of  the  child,  and

there  shall  be  no presumption that such interests will be promoted by
any particular custodial disposition.
7.  Upon  acceptance  of  a  judicial  surrender  or  approval  of  an
extra-judicial surrender pursuant  to  this  section,  the  court  shall
schedule  an  initial freed child permanency hearing pursuant to section
one thousand eighty-nine of the family court act.
8. Upon execution of a surrender instrument, the parent executing  the
surrender  shall  provide  information to the extent known regarding the
other parent, any person  to  whom  the  surrendering  parent  had  been
married  at  the  time  of  the conception or birth of the child and any
other  person  listed  in  subdivision  two  of  section  three  hundred
eighty-four-c  of this title. Such information shall include, but not be
limited to, such parent's or person's name, last-known  address,  social
security   number,   employer's   address   and  any  other  identifying
information. Any information provided pursuant to this subdivision shall
be recorded in the uniform case record maintained  pursuant  to  section
four hundred nine-f of this article; provided, however, that the failure
to provide such information shall not invalidate the surrender.
9. Acceptance of a judicial surrender or approval of an extra-judicial
surrender  pursuant  to this section shall not be construed to terminate
any rights of the child to contact his or her siblings. For purposes  of
this section, "siblings" shall include half-siblings and those who would
be  deemed  siblings or half siblings but for the surrender, termination
of parental rights or death of a parent.