Revision as of 16:28, 23 February 2017

Adoption Laws

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Consent to Adoption

Who Must Consent to an Adoption Citation: Dom. Rel. Law §§ 111; 113

Consent to adoption shall be required from the following persons or entities:

• The parents or surviving parent, whether adult or minor, of a child conceived or born in wedlock
• The mother, whether adult or minor, of a child born out of wedlock
• The father, whether adult or minor, of a child born out-of-wedlock and placed with the adoptive parents more than 6 months after birth, but only if that father has maintained substantial and continuous or repeated contact with the child
• The father, whether adult or minor, of a child born out-of-wedlock and placed with the adoptive parents less than 6 months after birth, but only if the father:
  • Openly lived with the child or the child’s mother for a continuous period of 6 months immediately preceding the placement of the child for adoption
  • Openly held himself out to be the father of such child during such period
  • 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
• Any person or authorized agency having lawful custody of the adoptive child

An authorized agency may consent to the adoption of a minor whose custody and guardianship has been transferred to that agency.

Consent of Child Being Adopted Citation: Dom. Rel. Law § 111

Consent to adoption shall be required of the adoptive child who is age 14 or older unless the judge or surrogate in his discretion dispenses with that consent.

When Parental Consent Is Not Needed Citation: Dom. Rel. Law § 111

Consent shall not be required of a parent or of any other person having custody of the child:

• 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 6 months to visit the child and communicate with the child or person having legal custody of the child, although able to do so
• Who has surrendered the child to an authorized agency
• For whose child a guardian has been appointed
• Who, by reason of mental illness or mental retardation, is presently and for the foreseeable future unable to provide proper care for the child
• Who has executed an instrument, which shall be irrevocable, denying the paternity of the child

When Consent Can Be Executed

This issue is not addressed in the statutes reviewed.

How Consent Must Be Executed Citation: Dom. Rel. § 115-b; Soc. Serv. Law. § 384

A consent to adoption executed by a person who is in foster care shall only be executed before a judge of the family court.

A consent to a private placement adoption may be executed or acknowledged before any judge or surrogate in this State having jurisdiction over adoption proceedings. Such consent shall state that it is irrevocable upon such execution or acknowledgment.

At the time that a parent appears before a judge or surrogate to execute or acknowledge a consent to adoption, the judge or surrogate shall inform the parent of the consequences of that act, including informing the parent of the right to be represented by legal counsel of the parent’s own choosing and of the right to obtain supportive counseling. The judge or surrogate shall give the parent a copy of such consent upon the execution thereof.

In any case in which a consent is not executed or acknowledged before a judge or surrogate, that consent shall be executed or acknowledged before a notary public or other officer authorized to take proof of deeds. A copy of the consent shall be given to the parent upon the execution thereof.

Revocation of Consent Citation: Dom. Rel. § 115-b

A judicial consent shall state that it is irrevocable upon such execution or acknowledgment.

An extrajudicial consent shall become irrevocable 45 days after the execution of the consent unless written notice of revocation thereof is received by the court in which the adoption proceeding is to begin within the 45 days. The notice of revocation shall go into effect only if the adoptive parents fail to oppose such revocation or if they oppose such revocation and the court has determined that the best interests of the child will be served by giving force and effect to such revocation.

Nothing contained in this section shall bar actions or proceedings brought on the ground of fraud, duress, or coercion in the execution of an adoption consent.

Criminal Background Checks for Prospective Foster and Adoptive Parents

Requirements for Foster Parents Soc. Serv. Law § 378-a

A fingerprint-based criminal history records check is required for a prospective foster parent and any household member who is age 18 or older. An application for certification or approval of a prospective foster parent shall be denied where a criminal history record reveals a conviction for:

• Child abuse or neglect
• Spousal abuse
• A crime against a child, including child pornography
• A crime involving violence, including rape, sexual assault, or homicide
• A felony conviction within the past 5 years for physical assault, battery, or a drug-related offense

Requirements for Adoptive Parents Dom. Rel. Law §§ 112; 115-d

Before making an order of adoption, the judge shall inquire of the Department of Social Services whether an adoptive parent is the subject of an indicated report filed with the statewide Central Register of Child Abuse and Maltreatment.

A fingerprint-based check shall be made for any existing criminal history record of the applicant. A petition for certification as a qualified adoptive parent shall be denied where a criminal history record reveals:

• A felony conviction at any time involving:
  • Child abuse or neglect
  • Spousal abuse
  • A crime against a child, including child pornography
  • A crime involving violence, including rape, sexual assault, or homicide, other than a crime involving physical assault or battery
• A felony conviction within the past 5 years for physical assault, battery, or a drug-related offense

Grounds for Involuntary Termination of Parental Rights

Circumstances That Are Grounds for Termination of Parental Rights Soc. Serv. Law §§ 358-a; 384-b

An order terminating parental rights shall be granted only upon a finding that one or more of the grounds specified below are based upon clear and convincing proof:

• The parent has abandoned the child for 6 months immediately prior to the date on which the petition is filed in the court.
• The parent is presently and for the foreseeable future unable, by reason of mental illness or mental retardation, to provide proper and adequate care for the child.
• The child is a permanently neglected child.
• The parent severely or repeatedly abused such child.

When a court determines that reasonable efforts to reunite the child with his or her parent are not required, a petition to terminate parental rights may be filed immediately. Reasonable efforts shall not be required when:

• The parent has subjected the child to aggravated circumstances, as defined below.
• The parent of such child has been convicted of:
  • Murder or voluntary manslaughter and the victim was another child of the parent
  • The attempt to commit any of the above crimes
  • Assault or aggravated assault upon a person less than age 11 that resulted in serious physical injury to the child or another child of the parent
• The parent has failed for 6 months to keep the agency apprised of his or her location.
• An incarcerated parent has failed on more than one occasion to cooperate with efforts to assist the parent to plan for the future of the child or to plan and arrange visits with the child.
• The parental rights of the parent to a sibling of the child have been involuntarily terminated.

‘Aggravated circumstances’ means:

• A child has been either severely or repeatedly abused.
• A child has subsequently been found to be an abused child within 5 years after returning home following placement in foster care as a result of being found to be a neglected child.
• The parent of a child in foster care has refused and has failed completely, over a period of at least 6 months from the date of removal, to engage in services necessary to eliminate the risk of abuse or neglect.

Circumstances That Are Exceptions to Termination of Parental Rights Soc. Serv. Law § 384-b

When the child has been in foster care for 15 of the most recent 22 months, has been determined to be an abandoned child, or the parent has been convicted of one of the crimes listed above, a petition to terminate the parent’s rights shall be filed unless:

• The child is being cared for by a relative or relatives.
• The agency has documented in the most recent case plan a compelling reason for determining that the filing of a petition would not be in the best interests of the child.
• The agency has not provided to the parent or parents of the child such services as it deems necessary for the safe return of the child to the parent or parents unless such services are not legally required.
• The parent or parents are incarcerated or participating in a residential substance abuse treatment program, or the prior incarceration or participation of a parent or parents in a residential substance abuse treatment program is a significant factor in why the child has been in foster care for 15 of the last 22 months, provided that the parent maintains a meaningful role in the child’s life, and the agency has not documented a reason why it would otherwise be appropriate to file a petition pursuant to this section.

For the purposes of this section, a compelling reason why a petition for termination of parental rights is not required may include, but is not limited to:

• The child was placed into foster care, and a review of the specific facts and circumstances of the child’s placement demonstrates that the appropriate permanency goal for the child is either a return to his or her parent or guardian or discharge to independent living.
• The child has a permanency goal other than adoption.
• The child is age 14 or older and will not consent to his or her adoption.
• There are insufficient grounds for filing a petition to terminate parental rights.
• The child is the subject of a pending disposition.

Circumstances Allowing Reinstatement of Parental Rights Fam. Court Act §§ 635; 636; 637

A petition to restore parental rights may be filed when the following conditions are met:

• The order terminating parental rights was issued 2 or more years prior to the date of filing of the petition.
• The termination was based upon grounds enumerated § 384-b(4)(b), (c) or (d) of the social services law.
• The petitioners consent to the relief requested in the petition or that they withheld consent without good cause.
• The child is age 14 or older, remains under the jurisdiction of the family court, has not been adopted, does not have a permanency goal of adoption, and consents to the relief requested in the petition.

The petitioner shall have the burden of proof by clear and convincing evidence that restoration of parental rights is in the child’s best interests. The court may make the following orders of disposition:

• The court may grant the petition and transfer guardianship and custody of the child to the birth parent or parents.
• The court may dismiss the petition, in which case custody of the child with the authorized agency or individual would continue and a permanency hearing would be required to be held as scheduled.
• The court may grant the petition conditionally for a designated period of up to 6 months, during which time guardianship and custody of the child shall remain with the local social services district or authorized agency while the child may visit with, or be placed on a trial discharge with, the birth parent or parents. The court shall direct the district or agency to supervise the child’s birth parent or parents, develop a reunification plan, and provide appropriate transitional services to the child and birth parent or parents.

Home Study Requirements for Prospective Parents in Domestic Adoption

Who Must Be Studied Citation: Code of Rules & Regs. Tit. 18, § 421.27

The applicant and any person older than age 18 residing in the applicant’s household must be included in the study.

Agency or Person Conducting the Study Citation: Dom. Rel. Law § 115-d

A preplacement investigation conducted pursuant to the provisions of this section shall be made by a disinterested person who in the opinion of the court is qualified by training and experience to examine into the allegations set forth in the application and any other factors that may be relevant to the suitability of the applicant or applicants as a qualified adoptive parent or parents. For the purposes of this section, a disinterested person shall include a licensed master social worker, licensed clinical social worker, the probation service of the family court, or an authorized agency specifically designated by the court to conduct preplacement investigations.

Qualifications for Adoptive Parents Citation: Code of Rules & Regs. Tit. 18, § 421.16

Applicants shall be at least age 18. The agency shall not establish any other minimum or maximum age for acceptance. An applicant shall healthy enough to have the energy and other abilities needed to fulfill the parental responsibilities.

Agencies must not consider marital status in their acceptance of applicants. Married applicants must have been married for at least 1 year. An adoptive applicant may not be rejected for adoption because of his or her fertility. The significance of fertility and/or infertility as it relates to the desire to adopt shall always be explored in the adoption process, but applicants shall not be required to provide proof of infertility.

The agency may study family size as it relates to the ability of a family to care for another child and the quality of life that will be offered to an adoptive child. Applicants shall not be rejected solely based on homosexuality. A decision to accept or reject when homosexuality is at issue shall be made as it relates to the best interests of adoptive children.

Employment, education, or volunteer activities of the applicants may not be a basis for rejection. Race, ethnic group, and religion shall not be a basis for rejecting an adoption applicant.

No applicant shall be rejected based on low income or because of receipt of income maintenance payments. The adoption study process shall evaluate an applicant’s ability to budget his or her resources in such a way that a child can be reasonably assured of minimum standards of nutrition, health, shelter, clothing, and other essentials.

Changes in employment and residences may be examined to determine the significance of such changes for the functioning and well-being of the family and any child to be placed in the home.

Elements of a Home Study Citation: Code of Rules & Regs. Tit. 18, §§ 421.16; 421.27

An adoption study shall explore the applicant’s:

• Capacity to give and receive affection
• Ability to provide for a child’s physical and emotional needs
• Ability to accept the intrinsic worth of a child, to respect and share his or her past, and to have realistic expectations and goals
• Flexibility and ability to change
• Ability to cope with problems, stress, and frustration
• Feelings about parenting an adopted child and the ability to make a commitment to a child placed in the home
• Ability to use community resources to strengthen and enrich family functioning

A report of a physical examination conducted not more than 1 year preceding the date of the adoption application regarding the family’s general health; the absence of communicable disease, infection, or illness; or any physical condition that might affect the proper care of an adopted child, is required.

An adoption study shall inquire into an applicant’s experience with children and offer him or her, if feasible, the opportunity to increase his or her experience, knowledge, and skills in this area. The adoption study process shall include inquiry into the applicant’s ability to locate and take advantage of human and organizational resources to strengthen his or her capacity as parents.

An adoption study shall include a check with the State Central Register of Child Abuse and Maltreatment as whether the subject has an indicated child abuse and maltreatment report on file. If the applicant or other household member age 18 or older has resided out of State at any time during the previous 5 years, a check of out-of-State registries must be made.

An authorized agency must perform fingerprint-based State and Federal criminal history record checks regarding any prospective adoptive parent and each person older than age 18 who is currently residing in the home of the prospective adoptive parent before the adoptive parent is finally approved for the placement of a child.

Grounds for Withholding Approval Citation: Code of Rules & Regs. Tit. 18, §§ 421.16; 421.27

If the applicant is the subject of an indicated report of child abuse or maltreatment, the agency must determine on the basis of the information it has available and in accordance with guidelines developed by the department whether to approve the application.

Current abuse of alcohol or other drugs requires the rejection of an application. The record must clearly show how the finding of such abuse was made.

The authorized agency must deny an adoption application when a criminal history record of the prospective or approved adoptive parent reveals:

• A felony conviction at any time involving:
  • Child abuse or neglect
  • Spousal abuse
  • A crime against a child, including child pornography
  • A crime involving violence, including rape, sexual assault, or homicide, other than a crime involving physical assault or battery
• A felony conviction within 5 years for physical assault, battery, or a drug-related offense

The authorized agency may deny an application for approval of a prospective adoptive parent when:

• A criminal history record of the prospective or approved adoptive parent reveals a charge or a conviction of a crime other than one set forth above
• A criminal history record of any other person older than age 18 who resides in the home of the prospective or approved adoptive parent reveals a charge or a conviction of any crime

When Studies Must Be Completed Citation: Dom. Rel. Law § 115

A person seeking to commence a private-placement adoption shall be certified as a qualified adoptive parent by a court of competent jurisdiction prior to the placement of a child in his or her home.

Postplacement Study Requirements Citation: Dom. Rel. Law § 116

When the adoptive child is younger than age 18, no order of adoption shall be made until 3 months after the petition to adopt has been filed.

A postplacement investigation shall be made by a disinterested person who has no interest in the outcome of petitioner’s application. The disinterested person shall make a written report of his or her investigation that shall include, but not be limited to, the following information:

• The marital and family status and history of the adoptive parents and adoptive child
• The physical and mental health of the adoptive parents and adoptive child
• The property owned by and the income of the adoptive parents
• The compensation paid or agreed upon with respect to the placement of the child for adoption
• Whether either adoptive parent has ever been a respondent in any proceeding concerning allegedly abused, neglected, abandoned, or delinquent children
• Any other facts relating to the familial, social, religious, emotional, and financial circumstances of the adoptive parents that may be relevant to a determination of adoption

The written report of investigation shall be submitted to the court within 30 days unless the court grants an extension for good cause shown. The report shall be filed, in any event, before the final order of adoption is granted.

Exceptions for Stepparent or Relative Adoptions Citation: Dom. Rel. Law §§ 115-d; 116

A preplacement investigation is not required when the petition to adopt is filed by a stepparent for the adoption of a stepchild when the stepchild has resided with the birth parent and the stepparent for a continuous period of at least 1 year.

When the spouse of the adoptive parent is the birth parent of the child and the child has resided with the birth parent and adoptive parent for more than 3 months before the adoption petition was filed, a waiting period shall not be required.

Requirements for Interjurisdictional Placements Citation: Code of Rules & Regs. Tit. 18, § 421.14

When the Office of Children and Family Services, through the Interstate Compact on the Placement of Children, receives a request to conduct a home study for the approval of persons in New York as adoptive parents for a child from another State, the office will forward the request to the social services district in which the prospective adoptive parent resides for the purpose of conducting a home study and approving the prospective adoptive parent in accordance with these regulations. The social services district may conduct the study directly or may use a voluntary authorized agency to conduct the home study. The study must be completed and simultaneously returned within 60 days to the Office of Children and Family Services and the State or local agency that submitted the request.

The prospective adoptive parent need not complete the education or training requirements of this part for the completion of the home study.

The term ‘home study’ means an assessment of the safety and suitability of placing the child in the home of the prospective adoptive parent based on an evaluation of a home environment.

When a social services district proposes to place a foster child or children with prospective adoptive parent(s) in another State, the social services district must treat a home study received from the other State, an Indian Tribe, or a private agency under contract with the other State as meeting the requirements imposed by New York for the completion of a home study before placing the child or children in the home, unless within 14 days of the receipt of the home study, the social services district determines, based on the content of the home study, that making a decision in reliance on the home study would be contrary to the welfare of the child or children.

Foster to Adopt Placements Citation: Code of Rules & Regs. Tit. 18, § 421.19

Authorized agencies shall offer an adoption application to foster parents or refer them to an authorized agency that operates an adoption program when a child in their care for 12 continuous months has been freed for adoption. An agency shall accept an adoption application from a foster parent seeking to adopt a child who has been in his home for less than 12 continuous months. The agency must assess and prepare foster parent adoptive applicants as rapidly as possible, as follows:

• Review the information about the family that was obtained in the original foster home study and annual recertification
• Identify information needed in an adoption study that was lacking or insufficiently current
• Identify those areas of family functioning that may need further exploration or strengthening
• Conduct an adoption study process that:
  • Does not repeat information gathering activities
  • Obtains additional or updated information as rapidly as possible, including obtaining criminal history record checks
  • Focuses on areas identified as needing further exploration or strengthening
  • Clarifies for the applicant the difference between foster care and adoption and the issues involved in obtaining an adoption subsidy
  • Includes inquiring of the Office of Children and Family Services whether an applicant or other person older than age 18 who resides in the home is the subject of an indicated report of child abuse or maltreatment on file with the Statewide Central Register of Child Abuse and Maltreatment

Infant Safe Haven Laws

Infant’s Age Citation: Penal Code §§ 260.00; 260.10

A child who is no more than 30 days old may be relinquished.

Who May Relinquish the Infant Citation: Penal Code §§ 260.00; 260.10

The child may be relinquished by his or her parent, guardian, or other person legally charged with the child’s care or custody.

Who May Receive the Infant Citation: Penal Code §§ 260.00; 260.10

The child may be left with an appropriate person at a suitable location.

Responsibilities of the Safe Haven Provider

This issue is not addressed in the statutes reviewed.

Immunity for the Provider

This issue is not addressed in the statutes reviewed.

Protection for Relinquishing Parent Citation: Penal Code §§ 260.00; 260.10

Relinquishment of the child to a safe haven is an affirmative defense to prosecution for abandonment or endangering the welfare of a child.

Effect on Parental Rights Citation: Soc. Serv. Law § 358-a

Reasonable efforts to reunify the child with his or her parent are not required when a court has determined the child was abandoned by the parent with an intent to wholly abandon such child.

Regulation of Private Domestic Adoption Expenses

Birth Parent Expenses Allowed Citation: Soc. Serv. Law § 374(6)

The adoptive parent is permitted to make the following payments:

• Reasonable and actual medical fees or hospital charges for services rendered in connection with the birth of the child
• Other necessary expenses incurred by the mother in connection with or as a result of her pregnancy or the birth of the child
• Reasonable and actual nursing, medical, or hospital fees for the care of the child
• The birth mother’s reasonable and actual expenses for housing, maternity clothing, clothing for the child, and transportation

Birth Parent Expenses Not Allowed Citation: Soc. Serv. Law § 374(6)

Payment of living expenses shall not extend for 60 days prior to the birth and 30 days after the birth, unless the court determines that there are exceptional circumstances.

Allowable Payments for Arranging Adoption Citation: Soc. Serv. Law § 374(6); Dom. Rel. Law § 116(3)(d)

No person may pay or give to any person or to any agency, association, corporation, institution, society, or organization except an authorized agency any compensation or thing of value in connection with the adoption of a child or for assisting a parent, relative, or guardian of a child in arranging for the placement of the child for the purpose of adoption.

In a private placement adoption, the investigation and report shall include the compensation paid or agreed upon with respect to the placement of the child for adoption.

Allowable Payments for Relinquishing Child Citation: Soc. Serv. Law § 374(6)

No agency, association, corporation, institution, society, or organization except an authorized agency and no person may or shall request, accept, or receive any compensation or thing of value, directly or indirectly, in connection with the placing of a child or for assisting a parent, relative, or guardian of a child in arranging for the placement of the child for adoption.

Allowable Fees Charged by Department/Agency Citation: Soc. Serv. Law § 374(6)

An authorized agency may charge or accept a fee or other compensation from a person with whom it has placed a child for the reasonable and necessary expenses of such placement.

The adoptive parent also may pay reasonable and actual legal fees charged for consultation and legal advice, preparation of papers and representation, and other legal services rendered in connection with an adoption proceeding or of necessary disbursements incurred for or in an adoption proceeding.

Accounting of Expenses Required by Court Citation: Dom. Rel. § 115(8)

In a private placement adoption, the adoptive parents shall present an affidavit describing all fees, compensation, and other remunerations paid by them on account of or incidental to the birth or care of the adoptive child, the pregnancy or care of the adoptive child’s mother, the placement or adoption of the child, and assistance in arrangements for such placement or adoption.

The attorney representing the adoptive parents shall also present an affidavit describing all fees, compensation, and other remuneration received by him or her on account of or incidental to the placement or adoption of the child or assistance in arrangements for such placement or adoption.

The Rights of Unmarried Fathers

Legal Definition of Father

This issue is not addressed in the statutes reviewed.

Paternity Registry Soc. Serv. Law § 372-c

The Department of Social Services shall establish a putative father registry that shall record the names and addresses of:

• Any person adjudicated by a court of this State to be the father of a child born out of wedlock
• Any person who has filed with the registry, before or after the birth of a child out of wedlock, a notice of intent to claim paternity of the child
• Any person adjudicated by a court of another State or territory of the United States to be the father of an out-of-wedlock child, where a certified copy of the court order has been filed with the registry by such person or any other person
• Any person who has filed with the registry an instrument acknowledging paternity

An unrevoked notice of intent to claim paternity of a child may be introduced in evidence by any party, other than the person who filed such notice, in any proceeding in which such fact may be relevant.

Alternate Means to Establish Paternity Pub. Health Law § 4135-b

Immediately preceding or following the in-hospital birth of a child to an unmarried woman, the person in charge of such hospital shall provide to the child’s mother and putative father, if such father is readily identifiable and available, the documents and written instructions necessary for such mother and putative father to complete an acknowledgment of paternity witnessed by two persons not related to the signatory.

Such acknowledgment, if signed by both parties, at any time following the birth of a child, shall be filed with the registrar at the same time at which the certificate of live birth is filed, if possible, or anytime thereafter.

Required Information Soc. Serv. Law § 372-c

A person filing a notice of intent to claim paternity of a child or an acknowledgment of paternity shall include therein his current address and shall notify the registry of any change of address pursuant to procedures prescribed by regulations of the department.

Revocation of Claim to Paternity Soc. Serv. Law § 372-c

A person who has filed a notice of intent to claim paternity may at any time revoke a notice of intent to claim paternity previously filed and, upon receipt of such notification by the registry, the revoked notice of intent to claim paternity shall be deemed a nullity nunc pro tunc.

Access to Information Soc. Serv. Law § 372-c

The department shall, upon request, provide the names and addresses of persons listed with the registry to any court or authorized agency, and such information shall not be divulged to any other person, except upon order of a court for good cause shown.

Use of Advertising and Facilitators in Adoptive Placements

Use of Advertisement

This issue is not addressed in the statutes reviewed.

Use of Intermediaries/Facilitators Citation: Soc. Serv. Law § 374(2)

No person, agency, association, corporation, institution, society, or other organization except an authorized agency shall place any child. This section shall not restrict or limit the right of a parent, legal guardian, or relative within the second degree to place out a child.

Who May Adopt, Be Adopted, or Place a Child for Adoption?

Who May Adopt Citation: Dom. Rel. Law § 110

The following persons may adopt:

• An adult unmarried person
• An adult married couple together
• Any two unmarried adult intimate partners together

An adult married person who is legally separated from his or her spouse or an adult married person who has been living separate and apart from his or her spouse for at least 3 years prior to commencing an adoption proceeding, may adopt another person. However, the person so adopted shall not be deemed the child or stepchild of the nonadopting spouse for the purposes of inheritance or support rights or obligations or for any other purposes.

An adult or minor married couple together may adopt a child of either of them born in or out of wedlock and an adult or minor spouse may adopt such a child of the other spouse.

Who May Be Adopted Citation: Dom. Rel. Law § 110

Any person may be adopted.

Who May Place a Child for Adoption Citation: Soc. Serv. Law § 374

A child may be placed by any of the following:

• An authorized agency
• A parent
• A legal guardian
• A relative within the second degree

Post-Adoption Laws

Access to Adoption Records

Who May Access Information Citation: Pub. Health Law §§ 4138-c; 4138-d

The following persons may receive information:

• The adopted person who is age 18 or older
• The birth parents
• A birth sibling who is age 18 or older

Access to Nonidentifying Information Citation: Pub. Health Law §§ 4138-c; 4138-d

The Department of Health shall operate an adoption information registry for the exchange of nonidentifying information between the persons listed above. Nonidentifying information shall include only the following information, if known, about the adopted person, birth parents, and birth siblings:

• The age of the parents in years at the time of the child’s birth
• The heritage of the parents, including nationality, ethnic background, race, and religion
• Education completed by the parents at the time of the child’s birth
• General physical appearance of the parents at the time of the child’s birth, including height, weight, color of hair, eyes, skin, and other information of similar nature
• The occupation of the parents
• The health history of the parents
• The talents, hobbies, and special interests of the parents
• The facts and circumstances relating to the adoption
• The existence of any known birth siblings

Upon acceptance of a registration, the department shall search registry records to determine whether the adopted person’s adoption occurred within the State. If the adoption did occur within the State, the department shall request nonidentifying information from court records. If the department determines that the adoption did not occur within the State, it shall notify the registrant that no record exists of the adoption occurring within the State.

If an agency was involved in the adoption, nonidentifying information may be accessed by registering the mutual consent voluntary adoption registry maintained by the agency.

Mutual Access to Identifying Information Citation: Pub. Health Law §§ 4138-c; 4138-d

The department shall operate an adoption information registry for the exchange of information among the persons listed above. Any person whose registration was accepted may withdraw the registration prior to the release of any identifying information.

Upon acceptance of a registration, the department shall search the registry files to determine whether the person sought is registered. If there is a match, the department shall notify the court to request the person’s final consent to the release of identifying information.

Upon receipt of a final consent by the adopted person, birth parent, and/or birth sibling, the department shall, unless the adopted person or birth sibling has elected otherwise, release identifying information to all the registrants. Such identifying information shall be limited to the names and addresses of the registrants and shall not include any other information contained in the adoption or birth records.

A mutual consent voluntary adoption registry may be maintained by each agency involved in an adoption. Persons eligible to receive identifying information may work through the agency involved in the adoption. The agency shall accept and maintain the registrations of an adopted person, the birth parents, or a birth sibling. If the agency determines that the agency was involved in the adoption, it shall transmit the registration to the adoption information registry operated by the department and release nonidentifying information.

An adoption medical information subregistry shall be part of the registry. Access to all identifying records and information in the subregistry shall be subject to the same restrictions as the adoption information registry. The department shall establish procedures by which a birth parent may provide medical information to the subregistry, and by which an adopted person age 18 or older, or the adoptive parents of an adopted person who is under age 18, may access the medical information.

Access to Original Birth Certificate Citation: Pub. Health Law § 4138

The original birth certificate is available only upon order of the court.

Where the Information Can Be Located

New York State Department of Health, Adoption Registry

Intestate Inheritance Rights for Adopted Persons

Birth Parents in Relation to Adopted Person Citation: Dom. Rel. Law § 117

After the making of an order of adoption, the birth parents of the adoptive child shall be relieved of all parental duties toward and of all responsibilities for and shall have no rights over such adoptive child or to his or her property by descent or succession. The right of an adopted child to inheritance and succession from and through his or her birth parents shall terminate upon the order of adoption.

When a birth or adoptive parent, having lawful custody of a child, marries or remarries and consents that the stepparent may adopt the child, such consent shall not relieve the parent so consenting of any parental duty toward the child, nor shall consent or the order of adoption affect the rights of the consenting spouse and the adoptive child to inherit from and through each other and the birth and adopted kindred of the consenting spouse.

Notwithstanding the above, and as to estates of persons dying after August 31, 1987, if the decedent is the adoptive child’s birth grandparent or is a descendant of such grandparent, and an adoptive parent is married to the child’s birth parent, is the child’s birth grandparent, or is descended from such grandparent, then the rights of an adoptive child to inheritance and succession from and through either birth parent shall not terminate upon the making of the order of adoption. However, an adoptive child who is related to the decedent both by birth relationship and by adoption shall be entitled to inherit only under the birth relationship unless the decedent also is the adoptive parent, in which case the adoptive child shall then be entitled to inherit pursuant to the adoptive relationship only.

Adoptive Parents in Relation to Adopted Person Citation: Dom. Rel. Law § 117

The adoptive parent(s) and the adopted child shall sustain toward each other the legal relation of parent and child and shall have all the rights and be subject to all the duties of that relation, including the rights of inheritance from and through each other.

Adopted Persons Who Are Not Included in a Will Citation: Est. Pow. & Trst. Law § 2-1.3

Unless the creator of a will expresses a contrary intention, a disposition of property to persons described in any instrument as the issue, children, descendants, heirs, heirs-at-law, next-of-kin, distributees (or by any term of like import) of the creator or of another, includes adopted children and their issue in their adoptive relationship. The rights of adopted children and their issue to receive a disposition under wills and lifetime instruments as a member of such class of persons based upon their birth relationship shall be governed by the provisions of § 117(2) of the domestic relations law.

Postadoption Contact Agreements Between Birth and Adoptive Families

What may be included in postadoption contact agreements? Soc. Serv. Law § 383-c(2)(b); Dom. Rel. Law § 112-b

If a child surrender instrument designates who will adopt a child, such person or persons, the child’s birth 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 the surrender instrument does not designate 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 may provide terms and conditions for communication with or contact between the child and the child’s biological siblings or half-siblings, if any.

Nothing in this section shall be construed to prohibit the parties to a proceeding under this chapter from entering into an agreement regarding communication with or contact between an adoptive child, adoptive parent or parents, and a birth parent or parents and/or the adoptive child’s biological siblings or half-siblings.

Who may be a party to a postadoption contact agreement? Soc. Serv. Law § 383-c(2)(b); Dom. Rel. Law § 112-b

The parties to the adoption may enter into an agreement regarding communication with or contact between an adoptive child, adoptive parent or parents, and a birth parent or parents and/or the adoptive child’s biological siblings or half-siblings.

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 legal guardian may enter into the agreement. 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 law guardian may enter into the agreement.

What is the role of the court in postadoption contact agreements? Soc. Serv. Law § 383-c(2)(b); Dom. Rel. Law § 112-b

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.

The court shall not incorporate an agreement regarding communication or contact into an order unless the terms and conditions of the agreement have been set forth in writing and consented to in writing by the parties to the agreement, including the law guardian representing the adoptive child. The court shall not enter a proposed order unless it has found that the communication with or contact between the adoptive child, the prospective adoptive parent or parents, and a birth parent or parents and/or biological siblings or half-siblings, as agreed upon and as set forth in the agreement, would be in the adoptive child’s best interests.

Are agreements legally enforceable? Soc. Serv. Law § 383-c(2)(b); Dom. Rel. Law § 112-b; Fam. Crt. Act § 1055-a

Enforcement of any agreement prior to the adoption of the child shall be in accordance with § 1055-a(b) of the family court act. Subsequent to the adoption of the child, enforcement of any agreement shall be in accordance with § 112-b of the domestic relations law.

Agreements regarding communication or contact between an adoptive child, adoptive parent or parents, and a birth parent or parents and/or biological siblings or half-siblings of an adoptive child shall not be legally enforceable unless the terms of the agreement are incorporated into a written court order. Failure to comply with the terms and conditions of an approved order regarding communication or contact that has been entered by the court pursuant to this section shall not be grounds for setting aside an adoption decree or revocation of written consent to an adoption after that consent has been approved by the court as provided in this section.

An order incorporating an agreement regarding communication or contact entered under this section may be enforced by any party to the agreement or the law guardian by filing a petition in the family court in the county where the adoption was approved.

The court shall not enforce an order under this section unless it finds that the enforcement is in the child’s best interests. If an agreement for continuing contact and communication pursuant to § 383-c(2)(b) of the social services law is approved by the court, and the child who is the subject of the approved agreement has not yet been adopted, any party to the approved agreement may file a petition with the family court in the county where the agreement was approved to enforce such agreement. A copy of the approved agreement shall be annexed to such petition. The court shall enter an order enforcing communication or contact pursuant to the terms and conditions of the agreement unless the court finds that enforcement would not be in the best interests of the child.

How may an agreement be terminated or modified?

This issue is not addressed in the statutes reviewed.

Laws Related to Intercountry Adoption

Effect and Recognition of a Foreign Adoption Decree

This issue is not addressed in the statutes reviewed.

Readoption After an Intercountry Adoption

Dom. Rel. Law § 115-a(8)

Notwithstanding any provision of law to the contrary, when a child is placed with a couple or individual in New York State for the purpose of adoption, and the adoption has previously been finalized in the country of birth outside the United States, the couple or person may petition the court in their county of residence in New York State for the readoption of the child in accordance with the provisions of this chapter, providing for adoptions originally commenced in this State.

In any proceeding for readoption, proof of finalization of an adoption outside the United States shall be prima facie evidence of the consent of those parties required to give consent to an adoption.

Application for a U.S. Birth Certificate

Pub. Health Law § 4138-b

A certificate of birth shall be prepared whenever proper proof is submitted to the commissioner that a person, who is under age 18 and born outside of the United States, has been validly adopted by residents of this State pursuant to a judgment, order, or decree of adoption issued by a court of competent jurisdiction in this State, another State, or a foreign country.

A completed request shall include:

• Proof that the adoptive parent was a resident of this State at the time of adoption
• A copy of the adoption documents of the jurisdiction or country where the adoption took place
• A certified translation of the foreign adoption documents
• Evidence of the date and place of the child's birth
• Evidence of IR-3 or IR-4 immigrant visa status or a successor immigrant visa status

The new birth certificate shall include the child’s name, sex, date of birth, time of birth, place of birth, mother’s maiden name, and father’s name.

Source

Child Welfare Information Gateway. U.S. Department of Health and Human Services Administration for Children and Families. [1]

References