In re the Adoption of Lord

28 A.D.2d 1203, 288 N.Y.S.2d 25, 1967 N.Y. App. Div. LEXIS 2915

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 30, 1967
• Status: Published

Opinion

Memorandum: In the exercise of a proper discretion the motion should have been granted. It was denied on the theory that the petitioners had offered no proof “ that there was any fraud of any kind or nature or any other cause that would warrant the granting of the relief.” Apparently the Family Court Judge was under the impression that in order to constitute fraud in a matter of delicacy such as this there had to be an out-and-out, direct misrepresentation. This is not so. The matters of evasion, withholding information from the court, the failure to disclose in an open and fair manner certain material facts in relation to the history of the controversy and the prior conduct of the parties and the previous custody of the child (if there was in fact such a withholding, and it appears that there may well have been) would be sufficient to prompt the granting of the order. In a proceeding of this type full and complete disclosure of all material facts is required. Of course it cannot be ascertained definitely just what was divulged to the court until after the inspection which we have directed in Matter of Lord v. Joor (28 A D 2d 1202), but we may presume that the material facts were not fully developed with candor in the petition for adoption, because if they had been it is inconceivable that the court would not have directed that notice be given to all interested parties beyond that required by the bare necessities of the statute. Upon the hearing of the application to vacate, and in all matters relating to the future adoption proceedings, there should be a guardian ad litem appointed to protect the interests of the infant. All persons in interest should be given notice and an opportunity to be heard. The proceedings should be had before Judge Angus G. Saunders of Jefferson County, who is hereby assigned to Onondaga County Family Court for that purpose, and the guardian ad litem should be appointed by Judge Saunders. (Appeal from an order of Onondaga Family Court, denying application to open, vacate and/or set aside adoption order.) Present — Williams, P. J., Bastow, Henry and Del Vecchio, JJ.