Matter of Victor M. I. I.

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[*1] Matter of Victor M. I. I. 2009 NY Slip Op 50557(U) [23 Misc 3d 1103(A)] Decided on March 30, 2009 Surrogate's Court, Nassau County Riordan, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 30, 2009
Surrogate's Court, Nassau County

In the Matter of the Application of Victor M. I. I.,

to unseal adoption records.


The appearance of counsel are as follows:

Paskoff & Tamber(attorneys for petitioner)

225 West 34th Street

Suite 1504

New York, NY 10122

John B. Riordan, J.

Before the court is the application of an adult who was adopted in 1968 at the age of eleven months, to unseal adoption records on the basis of alleged good cause pursuant to Domestic Relations Law §114(2). Petitioner's application is supported by the affidavit of his biological mother, in which she consents to the unsealing of the adoption records. The biological father is unknown. Both adoptive parents are deceased. Petitioner has also submitted a copy of his original order of adoption, a copy of his post-adoption birth certificate, which reflects the names of his adoptive parents, and death certificates for petitioner's adoptive mother and father.

Petitioner has brought this application for the limited purpose of obtaining two certified copies of his original pre-adoption birth certificate in order to establish his Hungarian lineage. Petitioner avers that this will entitle him to become a citizen of Hungary, based upon the status of his biological mother, who is a Hungarian citizen. Petitioner would benefit from Hungarian citizenship because he frequently travels to Hungary for business and personal reasons and resides there on a part-time basis. Included with the petition are a photocopy and a verified translation of the birth certificate of petitioner's biological mother, and a photocopy of the passport of petitioner's maternal grandfather, which reflects Hungarian citizenship.

In New York State, the sealing of adoption records has been mandated for more than 60 years, although courts had the discretionary power to seal these records even before then (Matter of Linda F.M., 52 NY2d 236, 239 [1981]; appeal dismissed 454 US 806 [1981]). Currently, adoption records are sealed pursuant to Domestic Relations Law §114, to protect and insure confidentiality which is "vital to the adoption process" (Matter of Hayden, 106 Misc 2d 849 [Sup Ct, New York County 1981]). As expressed by the Court of Appeals, the purpose is to provide anonymity to the natural parents, enable the adoptive parents to form a close bond with their adopted child, protect the adopted child from possibly disturbing information that might be found in his records, and allow the state to foster an orderly and supervised adoption system (Matter of Linda F.M., 52 NY2d 236, 239 [1981]; appeal dismissed 454 US 806 [1981] [internal citations omitted]). There have been challenges to the power of New York State to seal adoption records, [*2]but the courts have determined that these statutes are not in violation of the equal protection clause of the 14th Amendment and are constitutional (Matter of Linda F.M., 52 NY2d 236 [1981]; appeal dismissed 454 US 806 [1981]; Matter of Romano, 109 Misc 2d 99 [Sur Ct, New York County 1981]).

At the same time, the courts and the Legislature have recognized that circumstances may exist in which it is vital that an adopted child be provided with information regarding his background (Matter of Peter B., 12 Misc 3d 1184A [Sur Ct, Nassau County 2006]). When serious health issues arise, an adopted child or his adoptive parents may seek the medical history of the child's biological family pursuant to Domestic Relations Law §114(4). This statute permits interested parties seeking medical information to establish a prima facie case of good cause (see e.g. Matter of Peter B., 12 Misc 3d 1184A [Sur Ct, Nassau County 2006]). It is also possible to petition the court for access to adoption records for other reasons pursuant to Domestic Relations Law §114(2). This section provides that adoption records may be unsealed upon a showing of "good cause." It further directs that there must be "due notice to the adoptive parents and to such additional persons as the court may direct." While it is unusual for adoption records to be unsealed for a non-medical reason, "[e]xceptions to the medical requirement are rare but do occur occasionally" (Matter of Lewis, NYLJ, Apr. 20, 2007, at 32, col 1 [Sur Ct, Kings County]). The courts and the Legislature have attempted to strike a balance between the state's interest in maintaining sealed adoption records and the sometimes conflicting interests of all parties to an adoption, as further weighed against the justification underlying each particular request to unseal the records (15 Buffalo Journal Public Interest Law 49, 72 [1996]).

In weighing the opposing interests, courts may deny an adoptee's request to unseal his adoption record for lack of good cause. In a 2006 decision, the court denied adoptee's application where it determined that the request was based upon an "adoptee's general curiosity about her ancestry and background" (Matter of Adoption of M.F., NYLJ, Sept. 9, 2006, at 46, col 5 [Sur Ct, Kings County]). Similarly, access to records was denied where petitioner wanted to give his children and grandchildren the opportunity to find out about their father's heritage (Matter of Lewis, NYLJ, Apr. 20, 2007, at 32, col 1 [Sur Ct, Kings County]). "By its very nature, good cause admits of no universal, black-letter definition" (Matter of Linda F.M., 52 NY2d 236, 240 [1981]; appeal dismissed 454 US 806 [1981]).

In cases in which good cause is found to exist, the court may require further steps to protect the parties to the adoption other than petitioner. In an application before this court, petitioner sought to unseal his adoption records for medical reasons, but failed to meet the specific statutory requirements of Domestic Relations Law §114(4) to establish good cause. The court advised petitioner that if he established good cause pursuant to Domestic Relations Law §114(2), he would also be required to furnish the court with consents signed by each of his adoptive parents, if they were living, or a death certificate for each deceased adoptive parent (Matter of Peter B., 12 Misc 3d 1184[A][Sur Ct, Nassau County]). In Matter of Wilson (153 AD2d 748 [2nd Dept 1989]), the court found that petitioner, whose adoptive father was deceased and whose adoptive mother approved his petition, had established good cause to unseal his adoption records, but the court still required a hearing to protect the interests of the biological parents, who may have wished to remain anonymous. [*3]

The facts presented to the court on the application are highly unusual in that there are virtually no competing interests to weigh against petitioner's application. The court has been presented with the petition of an adult applicant who maintains that a substantive benefit will accrue to him if he is able to obtain certified copies of his original birth certificate, which is unavailable from any other source. As to the interests of his adoptive parents, the court has before it death certificates for both. The biological father is unknown and petitioner's biological mother has consented to the relief requested. The state's interest in maintaining confidentiality as part of a viable system of adoption is also not a factor in this case, as there is no information contained in the requested document which petitioner does not already possess, and petitioner is not requesting unfettered access to the entire adoption file. It is not information which petitioner seeks; it is the certified document necessary to acquire Hungarian citizenship.

"Whether [good cause] exists, and the extent of disclosure that is appropriate, must remain for the courts to decide on the facts of each case" (Matter of Linda F.M., 52 NY2d 236, 240 [1981]; appeal dismissed 454 US 806 [1981]). Under these unique circumstances, the court finds that petitioner has demonstrated good cause, and that the due notice requirement of Domestic Relations Law §114(2) may be dispensed with, on the grounds that petitioner's application is supported by his only known biological parent, and petitioner's adoptive parents are deceased.

The court's ruling today is limited to the unusual set of facts with which it is presented. The court is compelled to note that it is not opening the door for unsealing adoption records in every instance where an adopted child who has reached majority asserts that access to his adoption records would be beneficial. As noted earlier, in many cases, the assurance of confidentiality afforded by the Legislature to both biological and adoptive parents has been determined to outweigh the justification underlying an adoptee's request for access to adoption records.

Upon paying the fee to the court for two certified copies, petitioner will be provided with the requested copies of his original birth certificate. The applicant shall not be permitted to personally inspect the records at this time.

This constitutes the decision and order of the court.

Dated: March 30, 2009

John B. Riordan

Judge of the

Surrogate's Court