US Laws, Codes, Statutes & Cases

 
    §  115-b. Special provisions relating to consents in private-placement
  adoptions.  1.  A  duly  executed  and   acknowledged   consent   to   a
  private-placement  adoption shall state that no action or proceeding may
  be maintained by the consenting parent for the custody of the  child  to
  be adopted except as provided in this section. Notwithstanding any other
  section  of  law,  a  consent to adoption executed by a person who is in
  foster care shall only be executed before a judge of the family court.
    2. Judicial consents. (a) 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. A
  consent executed or acknowledged before a court in another  state  shall
  satisfy the requirements of this section if it is executed by a resident
  of  the other state before a court of record which has jurisdiction over
  adoption proceedings  in  that  state,  and  a  certified  copy  of  the
  transcript  of that proceeding, showing compliance with paragraph (b) of
  this subdivision, is filed as part of the adoption  proceeding  in  this
  state.
    (b)  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 such parent of the consequences of such act pursuant to the
  provisions of this section, including informing such parent of the right
  to  be represented by legal counsel of the parent's own choosing; of the
  right to obtain supportive counseling and of any rights the  parent  may
  have  pursuant to section two hundred sixty-two of the family court act,
  section four hundred seven of the surrogate's court  procedure  act,  or
  section  thirty-five  of the judiciary law. The judge or surrogate shall
  give such parent a copy of such consent upon the execution thereof.
    3. Extrajudicial consents. (a) Whenever a consent is not  executed  or
  acknowledged  before a judge or surrogate pursuant to subdivision two of
  this section such consent shall become irrevocable forty-five 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  be
  commenced within said forty-five days.
    (b)  Notwithstanding  that such written notice is received within said
  forty-five days, the notice of revocation shall be given effect only  if
  the  adoptive  parents  fail  to  oppose such revocation, as provided in
  subdivision six of this section, or, if they oppose such revocation  and
  the  court as provided in subdivision six of this section has determined
  that the best interests of the child will be served by giving force  and
  effect to such revocation.
    4.  (a)  In  any  case where a consent is not executed or acknowledged
  before a judge or surrogate pursuant to subdivision two of this section,
  the consent shall state, in conspicuous print of at least eighteen point
  type:
    (i) the name and address of the court in which the adoption proceeding
  has been or is to be commenced; and
    (ii) that the consent may be revoked within  forty-five  days  of  the
  execution  of  the  document and where the consent is not revoked within
  said forty-five days no proceeding may be maintained by the  parent  for
  the return of the custody of the child; and
    (iii)  that  such  revocation  must  be in writing and received by the
  court where the adoption proceeding is to be commenced within forty-five
  days of the execution of said consent; and
    (iv) that, if the adoptive  parents  contest  the  revocation,  timely
  notice  of  the  revocation will not necessarily result in the return of
  the child to the parent's custody, and that the rights of the parent  to
  custody  of  the  child  shall  not be superior to those of the adoptive
  parents but that a hearing will be required before a judge  pursuant  to
  the  provisions  of this section to determine: (1) whether the notice of
  revocation was timely and properly given; and if necessary, (2)  whether
  the best interests of the child will be served by: (A) returning custody
  of the child to the parent; or (B) by continuing the adoption proceeding
  commenced  by  the  adoptive  parents;  or (C) by disposition other than
  adoption by the adoptive parents; or (D) by placement of the child  with
  an  authorized  agency, and if any such determination is made, the court
  shall make such disposition of the custody of the  child  as  will  best
  serve the interests of the child; and
    (v)  that  the  parent  has  the  right to legal representation of the
  parent's own choosing; the right to obtain supportive counseling and may
  have the right to have the court appoint an attorney pursuant to section
  two hundred sixty-two of the family  court  act,  section  four  hundred
  seven  of the surrogate's court procedure act, or section thirty-five of
  the judiciary law.
    (b) Such consent shall be executed or  acknowledged  before  a  notary
  public or other officer authorized to take proof of deeds.
    (c)  A  copy  of  such  consent shall be given to such parent upon the
  execution thereof.
    (d) The adoptive parent may commence  the  adoption  proceeding  in  a
  court  of  competent  jurisdiction  other  than  the  court named in the
  consent  provided  that  such  commencement  is  initiated   more   than
  forty-five  days  after the consent is executed. Such commencement shall
  not revive, extend or toll  the  period  for  revocation  of  a  consent
  pursuant to this section.
    5. For the purposes of commencing an adoption proceeding, the clerk of
  a  court of competent jurisdiction shall accept an adoption petition for
  filing which  is  complete  on  its  face  and  shall  not  require  any
  supplementary  documentation  as  a condition of filing. Nothing in this
  section shall compel a court to hear  an  adoption  petition  until  all
  documents  necessary  to  the adoption proceeding have been filed to the
  satisfaction of the court.
    6. (a) A parent may revoke his consent  to  adoption  only  by  giving
  notice,  in  writing,  of such revocation, no later than forty-five days
  after the execution of the consent, or twenty days after the receipt  of
  a  notice  of denial, withdrawal or removal pursuant to paragraph (a) of
  subdivision  four  of  section  seventeen  hundred  twenty-five  of  the
  surrogate's  court  procedure  act,  whichever is later, to the court in
  which the adoption proceeding has been  or  is  to  be  commenced.  Such
  notice  shall  set  forth the name and address of the court in which the
  adoption proceeding is to be commenced, the address of  the  parent  and
  may, in addition, set forth the name and address of the attorney for the
  parent.
    (b)  If,  within  forty-five days of the execution of the consent, the
  court has received such notice of revocation, the court  shall  promptly
  notify  the  adoptive  parents and their attorney, by certified mail, of
  the receipt by the court of such notice of revocation.
    (i) Such notice to the adoptive parents shall set forth that if within
  fifteen days from the date of such notice the  court  has  not  received
  from  the  adoptive  parents  or  their attorneys notice, in writing, of
  their intention to oppose such revocation by the parents,  the  adoption
  proceeding  will  be  dismissed and that, in case of such dismissal, the
  court  will  send  to  the  parents,  the  adoptive  parents  and  their
  respective  attorneys  the notice of dismissal, as provided in paragraph
  (c) of this subdivision.
    (ii) Such notice to the adoptive parents shall further set forth  that
  if,  within  fifteen  days from the date of such notice, the court shall
  receive from the adoptive parents notice, in writing, of their intention
  to oppose such revocation by the parents, the court will, upon notice to
  the parents,  the  adoptive  parents  and  their  respective  attorneys,
  proceed,  as  provided  in  paragraph  (d)  of  this  subdivision,  to a
  determination of whether such notice of revocation by the parents  shall
  be  given  force  and  effect and to a determination of what disposition
  shall be made of the custody of the child.
    (c) If the adoption proceeding is dismissed pursuant to the provisions
  of paragraph (b) of this subdivision,
    (i) Written notice of such dismissal shall forthwith be  sent  to  the
  parent, the adoptive parents and their respective attorneys.
    (ii)  Such notice of dismissal shall set forth the name and address of
  the parent, the name and address of the attorney for the parent, if any,
  the name and address of the attorney for the adoptive parents.
    (iii) Such notice of dismissal shall further set  forth  that  if  the
  child  is not returned to the custody of the parent within ten days from
  the date of such notice of dismissal,  the  court  will  forthwith  upon
  request,  in  writing,  by the parent or by the attorney for the parent,
  furnish to said parent or attorney so requesting, the names and  address
  of the adoptive parents.
    (iv)  Such  notice of dismissal shall further state that, in the event
  the custody of the child is not returned to the parent by  the  adoptive
  parents  upon  request  therefor,  a proceeding to obtain custody may be
  instituted by the parent in the Supreme Court or the Family Court.
    (d)  If,  pursuant  to  the  provisions  of  paragraph  (b)  of   this
  subdivision, the adoptive parents give timely and proper notice of their
  intention to oppose the revocation of the parent's consent:
    (i)  The  court  shall  promptly  notify,  in writing, the parent, the
  adoptive parents, their  respective  attorneys,  and  the  law  guardian
  appointed pursuant to section two hundred forty-nine of the family court
  act  or  a  guardian ad litem appointed pursuant to section four hundred
  three-a of the surrogate's court procedure act,  that  the  court  will,
  upon  the  date  specified  in  such  notice  by  the  court, or as soon
  thereafter as the parties may be heard pursuant to this paragraph,  hear
  and determine whether revocation of the consent of the parent was timely
  and properly given and whether the adoptive parent's notice of intent to
  oppose  such  revocation was timely and properly given and if necessary,
  hear and determine what disposition should be made with respect  to  the
  custody of the child.
    (ii)  The  court  shall,  upon  the  date  specified, take proof as to
  whether the best interests of the child  will  be  served  by  returning
  custody  of the child to the parents, or by the adoption of the child by
  the adoptive parents, or by placement of the child  with  an  authorized
  agency  for  foster  care  with  or  without authority to consent to the
  adoption of the child, or by other disposition of  the  custody  of  the
  child.
    (iii)  If  the  court  determines that the best interests of the child
  will be served by returning custody of the child to  the  parent  or  by
  placement of the child with an authorized agency or by disposition other
  than  adoption  by the adoptive parents, the revocation of consent shall
  be given force and effect and the court shall make such  disposition  of
  the custody of the child as will best serve the interests of the child.
    (iv) If the court determines that the best interests of the child will
  be  served  by  adoption of the child by the adoptive parents, the court
  shall enter an order denying any  force  or  effect  to  the  notice  of
  revocation  of  consent and shall dispose of the custody of the child as
  if no such notice of revocation had been given by the parent.
    (v) In such proceeding the parent or parents  who  consented  to  such
  adoption  shall  have  no  right to the custody of the child superior to
  that of the adoptive parents, notwithstanding that the parent or parents
  who consented to the adoption  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.  Nothing  contained in this section shall limit or affect the power
  and authority of the court in an adoption proceeding,  pursuant  to  the
  provisions  of  section one hundred sixteen of this title, to remove the
  child from the home of the adoptive parents, upon the  ground  that  the
  welfare  of  the child requires such action, and thereupon to return the
  child to a birth parent or place the child with  an  authorized  agency,
  or,  in the case of a surrogate, transfer the child to the family court;
  nor shall this section bar actions or proceedings brought on the  ground
  of  fraud,  duress  or  coercion  in  the  execution or inducement of an
  adoption consent.
    8. Notwithstanding any other  provision  of  this  section,  a  parent
  having  custody of a child whose adoption is sought by his or her spouse
  need only consent that his or her child be adopted by a named stepfather
  or stepmother.