Doe v. Roe
| Decision Date | 22 November 1971 |
| Citation | 37 A.D.2d 433,326 N.Y.S.2d 421 |
| Parties | James DOE (Doe being fictitious), Appellant, v. Isabel ROE (Roe being fictitious) et al., Respondents. IN the MATTER OF James DOE (Doe being fictitious). James Doe (Doe being fictitious), Appellant, v. Richard Roe (Roe being fictitious) et al., Respondents. |
| Court | New York Supreme Court — Appellate Division |
Michael I. Winter, Brooklyn, for appellant.
Seymour Schwartz, New York City, for respondents.
Before RABIN, P.J., and HOPKINS, MUNDER, MARTUSCELLO and SHAPIRO, JJ.
These consolidated appeals raise an interesting question, namely, whether a putative father can oppose the adoption of his son, born out of wedlock, by relying on an agreement entered into with the boy's mother.
The agreement was executed by the putative father, 'Doe' ('Doe' being fictitious), on October 31, 1966 and by the mother, who is now (Mrs.) Isabel 'Roe' ('Roe' being fictitious), on November 4, 1966. It provides in pertinent part as follows:
'(i) The partial relinquishment of the custody of the Child by the Father to the Mother, as in this paragraph privided (sic), shall not be construed to be a consent on the part of the Father to the adoption of the Child by any other person.
'(l) The parties shall confer with each other on all important considerations pertaining to the health, welfare, education and upbringing of the Child, with a view to arriving at a harmonious policy.
'(a) The Father agrees to pay monthly to the Mother the amount of One Hundred Dollars ($100.00).
'(b) The amount set forth in subdivision (a) of this paragraph shall be payable in advance on the first day of each month.
'(c) If at any time hereinafter (sic) the Mother remarries, all payments by the Father under this paragraph shall continue.
'(d) The Father shall make the payments set forth in this paragraph until the Child reaches the age of 21, unless prior to that time the Child commences full-time employment or marries, in which event support payments shall cease.
'(e) In addition to the foregoing, the Father shall pay to the Mother such amounts as will properly and adequately cover one-half (1/2) of the medical, dental and surgical expenditures of the Mother for the Child.'
At the time this agreement was executed, the child in question was two years and two months old. There is no issue as to paternity. He had been born in 1964 in Massachusetts where his parents, though not lawfully married, were living together. They remained together for about six months after the child's birth and then separated. The child has resided with the mother ever since.
In 1969, the mother married Richard 'Roe' ('Roe' being fictitious) in New York State and a little over a year later the 'Roes' filed a petition in the Surrogate's Court, Kings County, to adopt the child. The father appeared in the proceedings and objected to the adoption on the ground that it would impair his rights under the 1966 agreement. He asserted that he at all times had performed his obligations under the agreement, while the mother had accepted all the benefits but failed to live up to her obligations. The father obtained an adjournment in the adoption proceedings and thereupon instituted an action (based on the agreement) in the Supreme Court, Kings County, to permanently enjoin adoption of the child by Richard and Isabel 'Roe'.
The Supreme Court refused to accept jurisdiction and granted a motion by the 'Roes' to dismiss the complaint. The court held that the entire matter, including the efficacy of the 1966 agreement, was before the Surrogate's Court and should be determined by that court. I agree and the order entered thereon should be affirmed (SCPA 201), without costs.
Upon taking up the matter again, the Surrogate determined that the agreement gave the father no standing to object to the adoption. The welfare of the child is the prime consideration for the court in any adoption proceeding and, to use the Surrogate's words, that could not be 'the subject of barter'. Here, the child's welfare required that the putative father's objection to the adoption be rejected.
On appeal, 'Doe' again relies upon his 'rights' under the agreement. He claims that the adoption should not have been granted until his rights thereunder were determined. This contention has no...
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