Jacob, Matter of

• Decision Date: 23 December 1994
• Citation: 620 N.Y.S.2d 640,210 A.D.2d 876
• Parties: Matter of JACOB, an Infant. Roseanne M.A. and Stephen T.K., Appellants.
• Court: New York Supreme Court — Appellate Division

Page 640

620 N.Y.S.2d 640

210 A.D.2d 876

Matter of JACOB, an Infant Roseanne M.A. and Stephen T.K., Appellants.

Supreme Court, Appellate Division Fourth Department.

Dec. 23, 1994.

Johnson, Atkinson, Getnick & Livingston by Nicholas S. Priore, Utica, for appellant.

Before GREEN, J.P., and PINE, BALIO, CALLAHAN and BOEHM, JJ.

MEMORANDUM:

Petitioners, Roseanne M.A. and Stephen T.K., an unmarried couple, filed a petition seeking to jointly adopt a child, who is the natural child of Roseanne. Family Court dismissed the petition because petitioners are unmarried and, pursuant to Domestic Relations Law § 110, adoption by two unmarried persons is not authorized in New York.

"Adoption in this State is 'solely the creature of, and regulated by, statute law' " (Matter of Robert Paul P., 63 N.Y.2d 233, 237, 481 N.Y.S.2d 652, 471 N.E.2d 424, quoting Matter of Eaton, 305 N.Y. 162, 165, 111 N.E.2d 431). "Consequently, because adoption is entirely statutory and is in derogation of common law, the legislative purposes and mandates must be strictly observed" (Matter of Robert Paul P., supra, 63 N.Y.2d at 238, 481 N.Y.S.2d 652, 471 N.E.2d 424).

Domestic Relations Law § 110, the statute governing who may adopt or be adopted, provides that "[a]n adult unmarried person or an adult husband and his adult wife together may adopt another person." The statute does not permit adoption by two unmarried persons. Therefore, the decision of Oneida County Family Court (Morgan, J.) is correct, and the order must be affirmed.

Order affirmed without costs.

All concur except GREEN, J.P., and BALIO, J., who dissent and vote to reverse in the following Memorandum:

Petitioners, Roseanne M.A. and Stephen T.K., have lived together in what they describe as a "committed, long-term relationship" since March 1991. On January 12, 1994, they filed a petition seeking to jointly adopt Jacob, who is the natural child of Roseanne. Family Court, without considering whether the proposed adoption would be in the best interests of the child, dismissed the petition because petitioners are unmarried and, based upon a literal reading of Domestic Relations Law § 110, adoption by unmarried persons is not authorized in New York. We conclude that Domestic Relations Law § 110 must be read to permit two unmarried persons to adopt, and thus we respectfully dissent.

Domestic Relations Law § 110 provides that "[a]n adult unmarried person or an adult husband and his adult wife together may adopt another person." The court erred, however, in literally reading that statutory language to bar the adoption of children by unmarried persons.

New York's first adoption law, entitled "An Act to legalize the adoption of minor children by adult persons", authorized the adoption of minor children "by any adult" (L.1873, ch. 830, § 2). If the adults seeking to adopt were married, that law required them to jointly adopt the child, but the statute did not expressly bar unmarried adults from adopting jointly. The current statutory language authorizing adoption by "[a]n adult unmarried person" first appeared in an 1896 enactment of the adoption law (L.1896, ch. 272, § 60). The change in statutory language did not amount to a change in legislative policy, however, because section 8 of the Statutory Construction Law of 1892 (L.1892, ch. 677), which was in effect at the time of the 1896 enactment, contained the requirement that "[w]ords in the singular number include the plural, and in the plural number include the singular".

That rule of statutory construction currently appears in General Construction Law § 35. Thus, the statutory phrase "[a]n adult unmarried person" must be read to include "adult unmarried persons" unless the "general object, or the context of the language construed, or other provisions of law indicate that a different meaning or application was intended" (General Construction Law § 110).

A literal or strict construction of ruction of statutory language contained in our adoption laws is neither mandated by case law nor warranted by public policy. In Matter of Robert Paul P., 63 N.Y.2d 233, 481 N.Y.S.2d 652, 471 N.E.2d 424, the Court reiterated that "[a]doption in this State is 'solely the creature of, and regulated by, statute law' " (Matter of Robert Paul P., supra, at 237, 481 N.Y.S.2d 652, 471 N.E.2d 424, quoting Matter of Eaton, 305 N.Y. 162, 165, 111 N.E.2d 431) and that " '[t]he Legislature has supreme control of the subject' " (Matter of Robert Paul P., supra, at 237, 481 N.Y.S.2d 652, 471 N.E.2d 424, quoting Carpenter v. Buffalo Gen. Elec. Co., 213 N.Y. 101, 107, 106 N.E. 1026). "Consequently, because adoption is entirely statutory and is in derogation of common law, the legislative purposes and mandates must be strictly observed" (Matter of Robert Paul P., supra, 63 N.Y.2d at 238, 481 N.Y.S.2d 652, 471 N.E.2d 424). The statement that legislative purposes and mandates must be strictly observed does not mean that the statutory language must be strictly construed, as is illustrated by the facts and analysis in Matter of Robert Paul P. (supra). In that case, a 57-year-old unmarried homosexual male sought to adopt as his child his 50-year-old homosexual partner with whom he had lived for more than 25 years. Clearly, the petitioner qualified as an adoptive parent because he was an adult unmarried person. Moreover, the "child" qualified as an adoptive child because the law permits the adoption of adults. A literal reading of the statute authorized the adoption. The Court of Appeals upheld the denial of that petition, however, because the proposed adoption was inconsistent with the fundamental object and purpose of the adoption laws, which are to give effect to the parent-child relationship (see, Matter of Robert Paul P., supra, at 237-238, 481 N.Y.S.2d 652, 471 N.E.2d 424). That Court noted that adoption "is not a quasi-matrimonial vehicle to provide nonmarried partners with a legal imprimatur for their sexual relationship"; that petitioner and his partner were sexual partners, not parent and child; and that application of the adoption laws would be "wholly inconsistent with the underlying public policy of providing a parent-child relationship for the welfare of the child" (Matter of Robert Paul P., supra, at 236, 481 N.Y.S.2d 652, 471 N.E.2d 424).

Thus, in considering whether a petition for adoption should be granted, it is essential that the object and purpose of the adoption law be strictly observed, not that the statutory language be strictly construed. Indeed, "[a]doption laws in the United States are founded upon broad humanitarian principles and the public policy involved in the statutes is one of beneficence" (Matter of Malpica-Orsini, 36 N.Y.2d 568, 571, 370 N.Y.S.2d 511, 331 N.E.2d 486, appeal dismissed sub nom. Orsini v. Blasi, 423 U.S. 1042, 96 S.Ct. 765, 46 L.Ed.2d 631). Where a proposed adoption is "[i]n harmony with the legislative policy * * *, the adoption statute has been most liberally and beneficiently [sic] applied" (Matter of Malpica-Orsini, supra, 36 N.Y.2d at 572, 370 N.Y.S.2d 511, 331 N.E.2d 486; see also, Matter of Upjohn, 304 N.Y. 366, 373, 107 N.E.2d 492).

Construing the adoption law to authorize adoption by adult unmarried "persons" is consistent with the object and purpose of providing a parent-child relationship for the welfare of the child (see, Adoption of Tammy, 416 Mass. 205, 211-212, 619 N.E.2d 315, 318-319). Further, the proposed adoption of Jacob is in harmony with that general objective and purpose. Petitioners assert that they are living together in a committed relationship and that they are the de facto parents of Jacob. Unlike the proposed adoption in Matter of Robert Paul P., 63 N.Y.2d 233, 481 N.Y.S.2d 652, 471 N.E.2d 424, supra, the proposed adoption of Jacob would promote, and give effect to, a parent-child relationship. Because a literal or strict construction of the statutory language would contravene the object and purpose of the adoption law, it should not be applied. Instead, the statute should be construed liberally to promote its fundamental purpose.

Research has not disclosed any appellate authority in this State concerning whether the quoted statutory language authorizes adoption by two unmarried persons. Trial courts in New York have divided on that issue (see, Matter of Evan, 153 Misc.2d 844, 583 N.Y.S.2d 997 [unmarried lesbian partners may adopt biological child of one partner]; Matter of Hope, 150 Misc.2d 319, 571 N.Y.S.2d 182 [unmarried man and woman living together cannot adopt natural children of the woman]. Other jurisdictions with adoption statutes materially similar to New York's statute likewise have divided on that issue (see, e.g., Adoption of Tammy, 416 Mass. 205, 619 N.E.2d 315, supra [unmarried same-sex partners may adopt the biological child of one partner]; Adoption of Susan, 416 Mass. 1003, 619 N.E.2d 323 [same]; Matter of Appeal in Pima County Juvenile Adoption Action No. B-13795, 176 Ariz....