N.Y. Domestic Relations Law § 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.