RIGHTS OF UNMARRIED PARENTS EXPANDED

Signed into law on December 30, 2022:

"BILL NUMBER: S6389

SPONSOR: BRISPORT
 
TITLE OF BILL:

An act to amend the domestic relations law and the social services law,
in relation to the rights of non-marital parents in adoption, surrender,
and termination of parental rights proceedings in family court and
surrogate's court; and to repeal subdivision 12 of section 384-b of the
social services law relating thereto

 
SUMMARY OF PROVISIONS:

Section one provides full parental rights to fathers of children in
foster care who have been adjudicated or are in the process of being
adjudicated a parent, have executed an unrevoked acknowledgement of
parentage, or have filed an unrevoked notice of intent to claim parent-
age.

Section two rescinds the requirement of notice of adoption proceedings
to fathers of children in foster care who do not have full parental
rights.

Sections three through twelve modify relevant provisions of the Social
Services Law and the Domestic Relations Law to make them consistent with
the modifications made by sections one and two.

Section thirteen would make the bill effective immediately.

 
JUSTIFICATION:

New York State has a clear policy in favor of prioritizing the preserva-
tion and reunification of families. However, current law fails to abide
by this policy, and fails to keep families together, in cases of
"public" adoptions resulting from state intervention. As a result of
certain peculiarities in New York law, unmarried fathers may have their
parental rights prematurely terminated without a proper hearing.

Under the Domestic Relations Law, in cases of "public" adoptions, only
certain fathers have the right to consent to or prevent the adoption of
their child. The only fathers who have "consent" rights if the child was
placed for adoption at over six months of age are (1) those who were
married to the child's mother at the time of the child's birth; (2)
those who lived with the child for at least six months of the year
preceding the child's placement for adoption and "openly held "them-
selves out to be the father of the child"; and (3) those who otherwise
"maintained substantial and continuous contact with the child" both by
regularly visiting or communicating with them and by paying "a fair and
reasonable sum" to support them. If a father meets these criteria, then
the state is compelled to establish a basis for termination of parental
rights by clear and convincing evidence.

With respect to unmarried fathers and "public" adoptions, it is neces-
sarily impossible to prove that they have been married to the child's
mother, and it is highly unlikely that the father has been living with
the child for six months of the previous year if the child is in foster
care and the foster care agency is considering adoption. Therefore, the
only option for an unmarried father to preserve "consent" rights is to
demonstrate that the father "maintained substantial and continuous
contact with the child" both by regularly visiting or communicating with
them and by paying "a fair and reasonable sum" to support them. In cases
of "public" adoptions this rule leads to peculiar results because New
York case law has interpreted the duty to pay "a fair and reasonable
sum" in cases of "public" adoptions to require that the unmarried father
- who may not have even known of such an obligation - to have made
payments to the foster care agency that had been caring for the child. A
father who fails to make these payments can permanently lose his
parental rights. This is particularly egregious because there is no
requirement that foster care agencies inform fathers of the requirement
to pay support to the agency, nor even a requirement th at agencies
provide a means by which fathers may do so. Indeed, a significant
percentage of fathers are never provided an option by which they could
pay child support while their children are in foster care in New York.

With respect to "public" adoptions, and the termination of parental
rights for failure to make payments to foster care agencies, current law
has a disproportionate impact on fathers and children of color.  Lawyers
for fathers of children in foster care regularly challenge the constitu-
tionality of the current practice described above.  However, regardless
of the outcome of this litigation, legislation can remedy this issue and
further New York's policy of prioritizing the preservation and reunifi-
cation of families.

In order to remedy this issue, this legislation broadens the definition
of "consent" fathers in cases of "public" adoptions, so that fathers who
have been legally adjudicated to be the parent of the child or have
timely executed a formal acknowledgment of parentage have full parental
rights. This law does not affect "private" adoptions in any way. Rather,
it applies only to adoptions that occur after a child has been involun-
tarily separated from their family by the state, and the state seeks to
take the step of severing the parent-child relationship for an unmarried
father. The state will still be able to terminate such an unmarried
father's parental rights in appropriate cases on the grounds of abandon-
ment, permanent neglect, mental illness, intellectual disability, and
severe and repeated abuse, just as it would in the case of a mother or
married father who failed to meet those obligations. The local child
protective agencies will similarly still have the ability to seek child
support from the parents of children in foster care, if they choose to
do so. This legislation simply alters the potential consequence of an
unmarried father's failure to comply with his (often hidden) obligation
to pay support to a third party agency, so that his continued relation-
ship to his child does not hinge on such payment alone."