Adoption of Anonymous, In re

• Decision Date: 15 November 1972
• Citation: 337 N.Y.S.2d 896,71 Misc.2d 1054
• Parties: In the Matter of the ADOPTION of ANONYMOUS. Surrogate's Court, Erie County
• Court: New York Surrogate Court

Page 896

337 N.Y.S.2d 896

71 Misc.2d 1054

In the Matter of the ADOPTION of ANONYMOUS.

Surrogate's Court, Erie County.

Nov. 15, 1972.

Dennis Denny, Buffalo, for petitioners.

WILLIAM J. REGAN, Surrogate:

The infant in this adoption proceeding was born on January 22, 1967. The natural mother, one of the petitioners herein, was at that time under the impression that she was married to the natural father by reason of a marriage ceremony that was performed on July 3, 1966. The natural father disappeared approximately one month after the birth of the infant and his whereabouts remain unknown to the petitioners.

Prior to this proceeding it was discovered that the natural father at the time of his marriage to the natural mother was, in fact, married to another woman until December 13, 1966, at which time his prior marriage was judicially dissolved in Erie County, New York. The petitioners were married on May 3, 1969. The questions that arise with respect to this proceeding are twofold: one, is an action to declare the nullity of the prior void marriage of the natural mother necessary to validate her present marriage to the petitioning foster father? two, is the consent of the natural father necessary in this adoption proceeding?

Section 6 of the Domestic Relations Law states that a marriage is absolutely void if contracted by a person whose husband or wife by a former marriage is living. (Exceptions not applicable herein). The requirement of an action declaring the nullity of such a void marriage is not mandated by the wording of § 140(a) of the Domestic Relations Law which states as follows:

'Former husband or wife living. An action to declare the nullity of a void marriage upon the ground that the former husband or wife of one of the parties was living, the former marriage being in force, may be maintained by either of the parties during the lifetime of the other, or by the former husband or wife.'

Because such a marriage is void from its inception no decree declaring it to be void is required. McCullen v. McCullen, 162 App.Div. 599, 147 N.Y.S. 1069; Stein v. Dunne, 119 App.Div. 1, 103 N.Y.S. 894, aff'd 190 N.Y. 524, 83 N.E. 1132. Neither laches nor the birth of a child of a second marriage can clothe it with sanctity. Ventura v. Ventura, 53 Misc.2d 881, 280 N.Y.S.2d 5. This Court is satisfied, therefore, that the marriage of the petitioners is a valid, existing marriage, despite the absence of a decree adjudging the prior marriage of the natural mother a void marriage.

The issue concerning the consent of the natural father becomes more complex. The first impression is to dispense with the consent of the natural father. Section 111 of the Domestic Relations Law provides as follows:

'Whose Consent Required

'Subject to the limitations hereinafter set forth consent to adoption shall be required as follows:

'1. Of the adoptive child, if over fourteen years of age, unless the judge or surrogate in his discretion dispenses with such consent;

'2. Of the parents or surviving parent, whether adult or infant, of a child born in wedlock;

'3. Of the mother, whether adult or infant, of a child born out of wedlock; . . .'

The section further provides that the consent shall not be required of a parent who has abandoned the child. The consent of the natural father, therefore, is not required where the child is born out of wedlock. But is the infant in this proceeding a 'child born out of wedlock'? By statutory provision (§ 24, subd. 1, Domestic...