N.Y. Domestic Relations Law § 115-b: Special provisions relating to consents in private-placement adoptions

§ 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. The consent shall include the following statement:

"I, (name of consenting parent), this ____ day of __________, _____,

have received a copy of this consent. (Signature of consenting parent)".

Such consenting parent shall so acknowledge the delivery and the date of

the delivery in writing on the consent.

(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 attorney for the

child 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.

9. Any consent to adoption subject to the provisions of this section

shall include an adoption information registry birth parent registration

consent form, stating whether or not such biological parent or parents

whose consent is subject to the provisions of this section, consents to

the receipt of identifying information by the child to be adopted upon

registration with the adoption information registry established by

section forty-one hundred thirty-eight-c of the public health law and

upon the adoptee reaching the age of eighteen. If such consent is made,

it shall be revocable by either of the biological parents at any time.

The revocation of the consent by one of the parents shall revoke the

consent of both parents. The failure of a biological parent to complete

the consent form shall have no effect on the finality of the consent to

adoption. A copy of the form required by this subdivision, shall be

forwarded to the state adoption information registry for inclusion in

the records maintained by such registry. Any fees authorized to be

charged by the state adoption registry for filing documentation with

such registry shall be waived for the form required by this subdivision.