2023 New York Laws › DOM - Domestic Relations › Article 7 - Adoption › Title 1 - Adoptions Generally › 111 - Whose Consent Required.

§   111.  Whose  consent  required.  1.  Subject  to  the  limitations
hereinafter set forth consent to adoption shall be required as follows:
(a) Of the adoptive child, if over fourteen years of age,  unless  the
judge or surrogate in his discretion dispenses with such consent;
(b)  Of the parents or surviving parent, whether adult or infant, of a
child conceived or born in wedlock;
(c) Of the mother, whether adult or infant, of a  child  born  out  of
wedlock;
(d)  Of  any  person  or  authorized  agency  having lawful custody or
guardianship of the adoptive child;
(e) In the case of the adoption of a child transferred to the  custody
and  guardianship  of  an  authorized agency, foster parent, or relative
pursuant to section three hundred eighty-four-b of the  social  services
law  or  a  child  transferred  to  the  custody  and guardianship of an
authorized agency pursuant to section three  hundred  eighty-three-c  of
the social services law:
(i)  Of  any person adjudicated by a court of this state or a court of
any other state or territory of the United States to be  the  father  of
the child prior to the filing of a petition to terminate parental rights
to  the  child  pursuant  to  section three hundred eighty-four-b of the
social services law, an application to execute a judicial  surrender  of
rights  to  the  child  pursuant  to  subdivision three of section three
hundred eighty-three-c of the social services law, or an application for
approval of an extra-judicial surrender pursuant to subdivision four  of
section three hundred eighty-three-c of the social services law;
(ii)  Of  any  person  who  filed  a petition in a court in this state
seeking to be adjudicated the father of the child prior to the filing of
a petition to terminate parental rights to the child pursuant to section
three hundred eighty-four-b of the social services law,  an  application
to  execute  a  judicial  surrender  of  rights to the child pursuant to
subdivision three of section three hundred eighty-three-c of the  social
services  law,  or  an  application  for  approval  of an extra-judicial
surrender  pursuant  to  subdivision  four  of  section  three   hundred
eighty-three-c  of  the social services law, provided that the parentage
petition has been resolved in the petitioner's favor or remains  pending
at  the  conclusion of the proceedings pursuant to section three hundred
eighty-four-b,  three   hundred   eighty-three-c,   or   three   hundred
eighty-four of the social services law;
(iii)  Of  any  person who has executed an acknowledgment of parentage
pursuant to section one hundred eleven-k of  the  social  services  law,
section  five  hundred  sixteen-a  of  the  family court act, or section
forty-one hundred thirty-five-b of the public health law  prior  to  the
filing  of a petition to terminate parental rights to the child pursuant
to section three hundred eighty-four-b of the social  services  law,  an
application  to  execute  a  judicial  surrender  of rights to the child
pursuant to subdivision three of section three hundred eighty-three-c of
the  social  services  law,  or  an  application  for  approval  of   an
extra-judicial  surrender  pursuant to subdivision four of section three
hundred eighty-three-c of the social services law,  provided  that  such
acknowledgement has not been vacated;
(iv)  Of  any  person who filed an unrevoked notice of intent to claim
parentage of the child pursuant to section three  hundred  seventy-two-c
of  the  social  services  law  prior  to  the  filing  of a petition to
terminate parental rights to the child pursuant to section three hundred
eighty-four-b of the social services law, an application  to  execute  a
judicial  surrender of rights to the child pursuant to subdivision three
of section three hundred eighty-three-c of the social services  law,  or
an  application  for approval of an extra-judicial surrender pursuant to

subdivision four of section three hundred eighty-three-c of  the  social
services law;
(f) In any other adoption proceeding:
(i)  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: (A)
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 (B) 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  (C)  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.  The
subjective  intent  of  the  father,  whether  expressed  or  otherwise,
unsupported by evidence of acts specified in this paragraph  manifesting
such  intent,  shall not preclude a determination that the father failed
to maintain substantial and continuous  or  repeated  contact  with  the
child.  In  making  such  a determination, the court shall not require a
showing of diligent efforts by any person or  agency  to  encourage  the
father  to  perform  the  acts  specified  in  this paragraph. A father,
whether adult or infant, of a  child  born  out-of-wedlock,  who  openly
lived  with  the  child  for  a period of six months within the one year
period immediately preceding the placement of the child for adoption and
who during such period openly held himself out to be the father of  such
child  shall  be  deemed  to  have maintained substantial and continuous
contact with the child for the purpose of this subdivision;
(ii) Of  the  father,  whether  adult  or  infant,  of  a  child  born
out-of-wedlock  who  is  under  the  age of six months at the time he is
placed for adoption, but only if: (A) such father openly lived with  the
child  or  the  child's  mother  for  a  continuous period of six months
immediately preceding the placement of the child for adoption;  and  (B)
such  father  openly  held  himself  out  to be the father of such child
during such period; and (C) such father paid a fair and reasonable  sum,
in  accordance  with  his  means,  for the medical, hospital and nursing
expenses incurred in connection with the mother's pregnancy or with  the
birth of the child.
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
(b)  who  has  surrendered the child to an authorized agency under the
provisions of section three  hundred  eighty-three-c  or  three  hundred
eighty-four of the social services law; or
(c) for whose child a guardian has been appointed under the provisions
of section three hundred eighty-four-b of the social services law; or
(d)  who,  by  reason of mental illness or intellectual disability, as
defined in subdivision six of section three hundred eighty-four-b of the
social services law, is presently and for the foreseeable future  unable
to  provide proper care for the child. The determination as to whether a
parent is mentally ill or  intellectually  disabled  shall  be  made  in
accordance with the criteria and procedures set forth in subdivision six
of section three hundred eighty-four-b of the social services law; or
(e)  who  has  executed  an  instrument,  which  shall be irrevocable,
denying the paternity of the child, such instrument having been executed
after conception and acknowledged or proved in the  manner  required  to
permit the recording of a deed.
3.  (a)  Notice  of  the  proposed adoption shall be given to a person
whose consent to adoption is required pursuant to  subdivision  one  and
who has not already provided such consent.
(b)  Notice  and an opportunity to be heard upon the proposed adoption
may be afforded to a  parent  whose  consent  to  adoption  may  not  be
required  pursuant  to  subdivision  two,  if  the judge or surrogate so
orders.
(c) Notice under this subdivision shall be given in such manner as the
judge or surrogate may direct.
(d) Notwithstanding any other provision of law, neither the notice  of
a proposed adoption nor any process in such proceeding shall be required
to contain the name of the person or persons seeking to adopt the child.
4.  Where  the  adoptive  child  is over the age of eighteen years the
consents specified in paragraphs (b), (c) and (d) of subdivision one  of
this  section  shall  not be required, and the judge or surrogate in his
discretion may direct that the consent specified  in  paragraph  (f)  of
subdivision  one of this section shall not be required if in his opinion
the best interests of  the  adoptive  child  will  be  promoted  by  the
adoption and such consent cannot for any reason be obtained.
5.  An  adoptive  child  who  has  once  been  lawfully adopted may be
readopted directly from such child's adoptive parents in the same manner
as from its birth parents. In  such  case  the  consent  of  such  birth
parents  shall  not  be  required  but  the  judge  or  surrogate in his
discretion may require that notice be given to the birth parents in such
manner as he may prescribe.
6. For the purposes of paragraph (a) of subdivision two:
(a) In the absence of evidence to the contrary, the ability  to  visit
and communicate with a child or person having custody of the child shall
be presumed.
(b) Evidence of insubstantial or infrequent visits or communication by
the  parent  or  other  person having custody of the child shall not, of
itself, be sufficient as a matter of law to preclude a finding that  the
consent  of  such  parent or person to the child's adoption shall not be
required.
(c) The subjective intent of the parent or other person having custody
of the child, whether expressed or otherwise, unsupported by evidence of
acts specified in paragraph (a)  of  subdivision  two  manifesting  such
intent,  shall  not  preclude  a  determination that the consent of such
parent or other person to the child's adoption shall not be required.
(d) Payment by a parent toward the support of the child of a fair  and
reasonable  sum,  according  to  the  parent's  means, shall be deemed a
substantial communication by such parent with the child or person having
legal custody of the child.