In re the Adoption of Madeline S.

3 A.D.3d 13, 769 N.Y.S.2d 22, 2003 N.Y. App. Div. LEXIS 13225
CourtAppellate Division of the Supreme Court of the State of New York
DecidedDecember 11, 2003
StatusPublished
Cited by8 cases

This text of 3 A.D.3d 13 (In re the Adoption of Madeline S.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re the Adoption of Madeline S., 3 A.D.3d 13, 769 N.Y.S.2d 22, 2003 N.Y. App. Div. LEXIS 13225 (N.Y. Ct. App. 2003).

Opinion

OPINION OF THE COURT

Saxe, J.P.

This appeal requires us to consider the showing necessary to permit the adoption of a child by a stepparent over the objection of the child’s natural parent.

The child who is the subject of this adoption proceeding, Madeline S., was born on June 11, 1996, at which time her mother and respondent father, Douglas S., had been married for about eight months. Both parents are professional actors.

In July 1997, the mother, with Madeline, moved into the Manhattan apartment of the mother’s new companion, Jack T, the petitioner here. The relationship between the mother and respondent deteriorated further during the course of the ensuing divorce action. The mother received interim custody of Madeline, but the parents fought bitterly over visitation rights, requiring multiple court appearances on that issue alone, and the issuance of numerous visitation orders. According to respondent, the police were called several times so that he could attempt to enforce his visitation rights. The mother’s hostility toward respondent was fueled by respondent’s failure to make regular child support payments.

On March 24, 1999, the parents reached a stipulation of settlement in the divorce action. Under the divorce agreement, the mother received custody of Madeline, and respondent received visitation two days per week, to be followed by overnight visits after six weeks of successful visitation. The parents were ordered to adjust the visitation schedule as circumstances required.

However, their arrival at an agreement did not end their hostilities. Very shortly after the agreement was reached, respondent was precluded from visiting Madeline in April and May of 1999, because the mother took the child to Texas when she accepted an acting role there. Moreover, even when the child was at home, the mother unilaterally canceled other scheduled visits, sometimes in response to respondent’s repeated late arrivals for scheduled visitation, sometimes for other reasons. For instance, his scheduled visit for June 26, 1999 was canceled because the child was spending the day with her maternal grandparents while the mother and Jack T. undertook [15]*15the process of moving into a different residence. Then, on June 30, 1999, after having returned Madeline home from a visit, fully expecting to have another scheduled visit with the child the following day, respondent found, upon arriving home, a telephone message from the mother canceling the next day’s visit.

As it turned out, the June 30, 1999 visit was the last time respondent saw Madeline prior to the commencement of this proceeding in November of 2000.

It appears that when the mother moved in early July 1999, the child’s new address was not given to respondent until he received a formal written notification on August 4, 1999. Then, for the entire month of August 1999, the child was unavailable for visitation, because she was in Maine with her mother, who had accepted another acting job there.

On October 1, 1999, respondent filed a petition in the Family Court to enforce his visitation rights; however, he failed to serve it, and it was dismissed without prejudice to refiling. He did, however, follow up on a separate petition to reduce his support obligation. At a November 8, 1999 hearing on the support petition, the Hearing Examiner directed that support be payable through the Support Collection Unit, so that payments would be garnished from respondent’s paycheck. Either during, or a couple of days after, this court appearance, respondent again made an overture to the mother that they work out the visitation problem, to no avail.

In November 1999, respondent accepted an acting job in Las Vegas, Nevada, that would keep him in that city until August 2000. That job would pay him about $2,000 per week, compared to the $400 per week he was receiving in unemployment benefits at the time he accepted the offer. Respondent explained that while he recognized that his absence would probably make the strain in visitation much worse, he decided that it would be foolish to turn down such an opportunity, given the salary and the possibility of paying off his debts.

In December 1999, respondent relocated to Las Vegas without reporting his move to the mother or leaving her a forwarding address; she learned about his move from respondent’s fan club Web site. Respondent testified that given the mother’s history of harassing him with phone calls and serving him at work with court papers, he was afraid that if she had his new address she would harass him to the point of making him unable to concentrate on his work.

[16]*16Respondent also explained that while he was in Las Vegas, he decided not to send Madeline any letters or gifts because he assumed that she would not get them due to the animosity between the parents. Respondent also explained that his busy schedule of nine shows per week and his tight financial situation prevented him from visiting the girl in New York.

However, respondent did manage to visit his other child, who lives in St. Louis, at Christmas time, explaining that his parents paid for the trip. Respondent also took two weekend car trips to Los Angeles to pursue acting jobs and a 24-hour business trip to New York.

In late August 2000, respondent moved back to New York City. In September, he wrote the mother a letter, asking that their visitation dispute be settled out of court. After receiving no response, he filed a visitation petition in Family Court, which he eventually abandoned because he could not afford an attorney.

In November 2000, this adoption proceeding was commenced by Madeline’s new stepfather, whom the mother had married in April 2000. A law guardian was appointed for the child; following his investigation, the law guardian agreed with petitioner’s position.

After trial, the Family Court denied the petition, finding that petitioner had failed to sustain his burden of establishing that respondent had abandoned Madeline. For the reasons that follow, we affirm.

Normally, the consent of both parents of a child born to a married couple is required before the child may be adopted by others (see Domestic Relations Law § 111 [1] [b]). However, the Domestic Relations Law permits a court to dispense with this right of a natural parent to prevent the child’s adoption under certain defined circumstances, including the parent’s abandonment of the child. The applicable provision of the Domestic Relations Law, section 111 (2) (a), states that in an adoption proceeding, “consent shall not be required of a parent . . . who evinces an intent to forego his or her parental or custodial rights and obligations as manifested by his or her failure for a period of six months to visit the child and communicate with the child or person having legal custody of the child, although able to do so.” This appeal focuses our attention on circumstances where a parent has indisputably “fail[ed] for a period of six months to visit the child and communicate with the child,” but asserts that because he has an explanation for that failure, his conduct [17]*17cannot be characterized as having “evince[d] an intent to forego his . . . parental or custodial rights and obligations” as is required by section 111 (2) (a).

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3 A.D.3d 13, 769 N.Y.S.2d 22, 2003 N.Y. App. Div. LEXIS 13225, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-adoption-of-madeline-s-nyappdiv-2003.