Adult Anonymous II, In re

• Decision Date: 08 July 1982
• Citation: 452 N.Y.S.2d 198,88 A.D.2d 30
• Parties: In re ADULT ANONYMOUS II.
• Court: New York Supreme Court — Appellate Division

Page 198

452 N.Y.S.2d 198

88 A.D.2d 30

In re ADULT ANONYMOUS II.

Supreme Court, Appellate Division First Department.

July 8, 1982.

William J. Thom, New York City, of counsel (Lambda Legal Defense & Education Fund, Inc., attorneys), for petitioners-appellants.

Trudi Mara Schleifer, New York City, of counsel (Leonard Koerner, Asst. Corp. Counsel, New York City, with her on the brief; Frederick A. O. Schwarz, Jr., Corp. Counsel, New York City, attorney), for respondent-respondent.

Before SULLIVAN, J. P., and CARRO, SILVERMAN, BLOOM and ASCH, JJ.

ASCH, Justice:

This is an appeal from an order, 111 Misc.2d 320, 443 N.Y.S.2d 1008, of the Family Court which dismissed a petition for the adoption of a 43 year old male (Mr. H) by a 32 year old male (Mr. S). While the adoption statute (Art. 7 of the Domestic Relations Law) does not expressly prohibit such adoptions, the Family Court denied the petition for adoption on public policy grounds.

Adoption exists in New York solely by virtue of statute and no person may be adopted except pursuant to statute (Domestic Relations Law § 110; N.Y. Jurisprudence 2d, Interim Topics, Adoption, § 2, p. 3; see, e.g. Matter of Malpica-Orsini, 36 N.Y.2d 568, 570, 370 N.Y.S.2d 511, 331 N.E.2d 486; Matter of Eaton, 305 N.Y. 162, 165, 111 N.E.2d 431).

Domestic Relations Law (DRL) § 110, describing who may adopt, expressly provides: "An adult unmarried person or an adult husband and his adult wife together may adopt another person " (emphasis added). The definitional section states: " 'Adoptive parent' or 'adoptor' shall mean a person adopting and 'adoptive child' or 'adoptee' shall mean a person adopted." (DRL § 109emphasis added). An amendment of the adoption statute, as early as 1915, specifically allowed the adoption of an adult. (Laws of 1915, chap. 352; Matter of Kingsbury, 192 App.Div. 206, 182 N.Y.S. 559, aff'd 230 N.Y. 580, 130 N.E. 901; Stevens v. Halstead, 181 App.Div. 198, 168 N.Y.S. 142).

The Court below stated as part of its rationale in denying the petition that "approval of such an adoption would violate the legislative intent of the Domestic Relations Law and do violence to the public policy that generates this state's laws on adoption." It further held "adoption will not result in the creation of a parent-child relationship, the court must disapprove the petition." However, neither the statute nor the case law enumerates such bases for denying an adoption.

The law is well settled that adoption of an adult by an adult is permissible so long as the parties' purpose is neither insincere nor fraudulent. (See 21 A.L.R.3d 1012 "Adoption of Adult"; Stevens v. Halstead, 181 App.Div. 198, 168 N.Y.S. 142).

A recent pronouncement on the subject was Matter of Anonymous, 106 Misc.2d 792, 435 N.Y.S.2d 527. "New York is very much in the mainstream of jurisdictions in its simplified approach to adult adoptions, and in having almost no statutory procedural restrictions for such adoptions...." ( Matter of Anonymous, id., p. 797, 435 N.Y.S.2d 527). Adoption is defined as a "legal proceeding whereby a person takes another person into the relation of child and thereby acquires the rights and incurs the responsibilities of parent in respect of such other person." (DRL Sec. 110).

"This definition is broad enough to encompass and justify the legal and economic relationship the parties here seek to create and which the Legislature has seen fit to allow.... The Legislature by its deliberately broad definition of an adoption proceeding has taken notice of the many legal and economic purposes which may motivate an adult adoption." (Matter of Anonymous, supra, at 797, 435 N.Y.S.2d 527).

The statute requires that the court is satisfied that the "best interests of the child will be promoted by granting an order of adoption". (DRL Section 116). The oft-quoted judicial standard used in measuring the adoption of an adult by an adult is that "the adoption will promote the moral and temporal interests of the person to be adopted." (Stevens v. Halstead, supra, 181 App.Div. at 202, 168 N.Y.S. 142). This is the legal framework against which the proposed adoption at bar must be measured.

The two men have lived together in what was originally Mr. H's apartment for three years. They consider their lifestyle as creating a "family unit". The probation report states that "it appears that Mr. S (the putative father) is the more aggressive, open and direct member of this family and does not hesitate to take the leadership and the initiative in most of the situations; Mr H appears to be the more passive member of the family, somewhat agreeing and acquiescing to Mr. S's dictates. Mr. S had indicated that despite the fact that Mr. H is older by some 9 years that he feels that Mr. H's parents have been dead for a considerable number of years and that Mr. H has a slight speech impediment, stuttering, and that he needs more looking after". "There is no question that the two adults have made a commitment at least for the past 2 1/2 years".

Undoubtedly, the pair wish to express in a "tangible and open fashion a bonding and emotional commitment which they wish to formalize in this proceeding." There is then the question of the apartment. The building in which the men reside is about to go co-op. The landlord has been evicting tenants with minor violations of their leases. Appellant's apartment, leased under Mr. H's name, contains a clause that only members of his immediate family may occupy the apartment, and the parties fear impending eviction. They wish to remain in the apartment and purchase it when it does go co-op. This is not a frivolous consideration. (Cf. Hudson View Properties v. Weiss, 86 A.D.2d 803, 448 N.Y.S.2d 649, 1982).

Historically, more frequently than not, adoption has served as a legal mechanism for achieving economic, political and social objectives rather than the stereotype parent-child relationship. (Enc. Brit., Adoption, p. 97 ). Adoption is often utilized by adults for strictly economic purposes, especially inheritance. Other considerations include insurance, tax impact and in this case, the apartment. Such a material concern is one of sober life reality and should not be regarded by the court as a cynical device to evade the strictures of the parties' leases or the policy of the adoption law.

The inheritance factor also plays a role in this case, as it did in Matter of Anonymous, supra. There the younger man became the father because he did not wish to affect his rights under his mother's will, then being probated. In the case at bar, the younger Mr. S wishes to become the father so as not to affect his legal relationship with his parents. Mr. H's parents are deceased.

All of the foregoing considerations coincide with the "best interests" standard. When dealing with adults, the "best interests" include the legal and economic purposes sought to be achieved by the parties, rather than for instance, the standards a court would apply to a neglected minor child. (Matter of Anonymous, supra, 106 Misc.2d at 797-8, 435 N.Y.S.2d 527).

The parties in the instant case have made a well-thought-out decision to proceed with this adoption. They have considered all the legal consequences and appear to have the advice of counsel. They have provided for the social and economic realities of their situation and adoption can well be said to be in their "moral and temporal interest."

At first blush it may seem to be a perversion of the adoption process for lovers to adopt one another. However, adoption has been sanctioned between adults, in general, and lovers in particular. The New York statute specifically allows an adult to be adopted, as noted supra, and unlike other jurisdictions, sets up no proscriptions about the ages of the parties. (Cf. Uniform Adoption Act, 9 Uniform Laws Ann. pp. 11-55; Idaho Code, § 16-1502, which require the adoptor to be at least ten years older than the adoptee.) New York has allowed lovers to adopt, Matter of Anonymous, supra. In Stevens v. Halstead, supra, the court did not decide that a sexual relationship standing alone would bar an adoption, rather it was a fraudulent inducement to be included in inheritance, which was the main basis for the decision. The court also was influenced by the fact that the parties were committing adultery, since the putative daughter was married to another man.

Other jurisdictions are split on the issue. An early Kentucky case specifically held that an adoption of a mistress was permissible. (Greene v. Fitzpatrick, 220 Ky. 590, 295 S.W. 896 see also, Vasconi Adoption, 73 Pa.D. & C. 119 ). Both of these cases mention that fraud in disclosing the relationship or otherwise obtaining the adoption would annul the adoption. In Bedinger v. Graybill's Executor & Trustee, 302 S.W.2d 594 a man was even allowed to adopt his wife. The Kentucky statute, similar to the one in New York, allowed any adult to adopt any other person. While noting the "apparent absurdity" of the situation and that "we do not know of a case of adoption so bizarre as this", the Kentucky court authorized the adoption. The court stated "the cleverness of the scheme nor the incongruity of the legal status of parent or child, can lead the court away from the fact that the adoption was within the authorization of the statute." (Bedinger v. Graybill's Executor & Trustee, supra, at 600, emphasis added; cf. In re Jones, 411 A.2d 910 ).

Incest is only a makeweight issue in this case. The New York incest statute is limited and does not proscribe a relationship such as here. DRL § 5 prohibits relations only between ancestor and descendant; brother and sister; and aunt/uncle-niece/nephew. Incest in general involves blood relatives. And, of course, the taboo against incest, grounded in eugenics (see, Freud, S., Totem and Taboo ), has little application in a relationship which can hardly result in offspring.

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