Adoption of Anthony John P., Matter of

• Decision Date: 07 November 1979
• Parties: In the Matter of the Adoption of ANTHONY JOHN P., an Infant. Surrogate's Court, Bronx County
• Court: New York Surrogate Court

Page 570

422 N.Y.S.2d 570

101 Misc.2d 918

In the Matter of the Adoption of ANTHONY JOHN P., an Infant.

Surrogate's Court, Bronx County.

Nov. 7, 1979.

David Correa, New York City, for petitioner.

Mirkin, Barre, Saltzstein, Gordon, Hermann & Kreisberg, P. C., Great Neck (Gerard A. Wisla, of counsel), for respondent.

BERTRAM R. GELFAND, Surrogate.

This is an application by the maternal grandparents seeking the adoption of a male child born out of wedlock on February 19, 1977. The infant's mother has consented to the adoption. The putative father is named on the child's birth certificate and has acknowledged paternity. The child bears his family name. Represented by counsel of his own choice, the respondent father has appeared in opposition to the application.

Petitioners do not dispute that respondent is the child's father. It is their position that the application should be granted as in the best interests of the infant without regard to the opposition of respondent. In support of this position petitioners present alternative arguments which they contend would support a conclusion that respondent does not possess an absolute right to veto the relief sought if it is in the child's best interests. Primarily they contend that as a matter of law, a putative father has no absolute right to veto the adoption of his child. In the alternative petitioners argue that if this respondent possesses any such veto right, he has forfeited it by dint of his abandonment of the infant. It is respondent's position that he has not abandoned the infant and that in the absence of a finding of abandonment his consent is required to the adoption.

The evidence adduced at the hearing established that the infant's natural mother first met respondent in March, 1976. She became pregnant in July, 1976. In September, 1976 she left the house of petitioners and she and respondent began to cohabit in the apartment of respondent's grandmother. During this period they were both essentially self-supporting. The child at issue was born prematurely on February 19, 1977. This necessitated his remaining in the hospital for approximately one month after his birth. During this period respondent visited the child in the hospital almost daily. Approximately one week after the birth of the child the natural mother and putative father separated. The natural mother returned to her parents home, to which she also brought the infant after his discharge from the hospital. Both the natural mother and the infant continue to be members of petitioners' household. Although respondent did not bear any of the expenses of the birth, it was conceded that he was not requested to and that he was never in the posture of refusing to share in meeting these expenses.

In the approximately one month between the infant's discharge from the hospital and respondent's entry into the Army in April, 1977, he visited the child at the home of the maternal grandparents on three occasions. Respondent never applied for an allotment for the infant's support. However, on one occasion during respondent's brief military service he communicated with the mother and sent her approximately $100.00 in support. It appears that shortly thereafter respondent suffered the nervous breakdown which resulted in the hospitalization that led to his discharge from the military service in July, 1977. Thereafter he was hospitalized in a Veteran's Administration Hospital followed by confinement at home for a period of six or seven months.

Prior to his entry into the military service respondent was employed by the New York City Department of Social Services. For a period continuing until August 8, 1978, respondent's illness prevented his return to this, or any other permanent employment. On that date he rejoined the Department of Social Services.

It was the testimony of the natural mother that the only time respondent saw the child thereafter was during the Christmas season of 1978. Respondent contends that he saw the child on several occasions and that he frequently called petitioners to inquire about the child's health. Respondent fixed his visits at between three and four since August 8, 1978. His telephone calls he numbered at approximately ten. He contended he left money and/or gifts on each visit. This was denied by the natural mother. Respondent's present position is that he is ready, willing and able to support the child and that he has offered to support the child. The existence of this offer was not refuted by petitioners. Respondent presently earns $303.00 net bi-weekly and would be willing to contribute between $20.00 and $50.00 bi-weekly for the support of the infant. It was also testified by respondent that the infant is the named beneficiary on his life insurance policy.

The threshold question of law that must be addressed is whether respondent, in the absence of abandonment, has the right under the laws of this state, if he chooses, to arbitrarily veto the application. The answer to this question is controlled by the decision of the United States Supreme Court in Caban v. Mohammed, --- U.S. ----, 99 S.Ct. 1760, 60 L.Ed.2d 297. The import of this case is that to the extent Domestic Relations Law § 111 establishes a gender based distinction between the rights of the male parent and female parent, this statute is constitutionally infirm.

The court cannot rewrite the existing statute. It must be applied as it stands limited only by the extent to which it has been determined to be constitutionally offensive to the Equal Protection Clause. The Caban case cannot conceivably be interpreted as striking down Domestic Relations Law § 111 so that the rights that the section confers on female parents are taken away from them by case law. Accordingly, the section as it now stands must be read as giving the same rights to male non-marital parents as it gives to female non-marital parents. This does not mean that the legislature is necessarily precluded from evolving a new statutory scheme which meaningfully differentiates between unwed fathers and unwed mothers that is not the "undifferentiated distinction" based solely on gender which the majority of the United States Supreme Court found unconstitutional....