§ 115-B — Special provisions relating to consents in private-placement adoptions

§ 115-b. Special provisions relating to consents in private-placement\nadoptions. 1. A duly executed and acknowledged consent to a\nprivate-placement adoption shall state that no action or proceeding may\nbe maintained by the consenting parent for the custody of the child to\nbe adopted except as provided in this section. Notwithstanding any other\nsection of law, a consent to adoption executed by a person who is in\nfoster care shall only be executed before a judge of the family court.\n 2. Judicial consents. (a) A consent to a private placement adoption\nmay be executed or acknowledged before any judge or surrogate in this\nstate having jurisdiction over adoption proceedings. Such consent shall\nstate that it is irrevocable upon such execution or acknowledgment. A\nconsent executed or acknowledged before a court in another state shall\nsatisfy the requirements of this section if it is executed by a resident\nof the other state before a court of record which has jurisdiction over\nadoption proceedings in that state, and a certified copy of the\ntranscript of that proceeding, showing compliance with paragraph (b) of\nthis subdivision, is filed as part of the adoption proceeding in this\nstate.\n (b) At the time that a parent appears before a judge or surrogate to\nexecute or acknowledge a consent to adoption, the judge or surrogate\nshall inform such parent of the consequences of such act pursuant to the\nprovisions of this section, including informing such parent of the right\nto be represented by legal counsel of the parent's own choosing; of the\nright to obtain supportive counseling and of any rights the parent may\nhave pursuant to section two hundred sixty-two of the family court act,\nsection four hundred seven of the surrogate's court procedure act, or\nsection thirty-five of the judiciary law. The judge or surrogate shall\ngive such parent a copy of such consent upon the execution thereof.\n 3. Extrajudicial consents. (a) Whenever a consent is not executed or\nacknowledged before a judge or surrogate pursuant to subdivision two of\nthis section such consent shall become irrevocable forty-five days after\nthe execution of the consent unless written notice of revocation thereof\nis received by the court in which the adoption proceeding is to be\ncommenced within said forty-five days.\n (b) Notwithstanding that such written notice is received within said\nforty-five days, the notice of revocation shall be given effect only if\nthe adoptive parents fail to oppose such revocation, as provided in\nsubdivision six of this section, or, if they oppose such revocation and\nthe court as provided in subdivision six of this section has determined\nthat the best interests of the child will be served by giving force and\neffect to such revocation.\n 4. (a) In any case where a consent is not executed or acknowledged\nbefore a judge or surrogate pursuant to subdivision two of this section,\nthe consent shall state, in conspicuous print of at least eighteen point\ntype:\n (i) the name and address of the court in which the adoption proceeding\nhas been or is to be commenced; and\n (ii) that the consent may be revoked within forty-five days of the\nexecution of the document and where the consent is not revoked within\nsaid forty-five days no proceeding may be maintained by the parent for\nthe return of the custody of the child; and\n (iii) that such revocation must be in writing and received by the\ncourt where the adoption proceeding is to be commenced within forty-five\ndays of the execution of said consent; and\n (iv) that, if the adoptive parents contest the revocation, timely\nnotice of the revocation will not necessarily result in the return of\nthe child to the parent's custody, and that the rights of the parent to\ncustody of the child shall not be superior to those of the adoptive\nparents but that a hearing will be required before a judge pursuant to\nthe provisions of this section to determine: (1) whether the notice of\nrevocation was timely and properly given; and if necessary, (2) whether\nthe best interests of the child will be served by: (A) returning custody\nof the child to the parent; or (B) by continuing the adoption proceeding\ncommenced by the adoptive parents; or (C) by disposition other than\nadoption by the adoptive parents; or (D) by placement of the child with\nan authorized agency, and if any such determination is made, the court\nshall make such disposition of the custody of the child as will best\nserve the interests of the child; and\n (v) that the parent has the right to legal representation of the\nparent's own choosing; the right to obtain supportive counseling and may\nhave the right to have the court appoint an attorney pursuant to section\ntwo hundred sixty-two of the family court act, section four hundred\nseven of the surrogate's court procedure act, or section thirty-five of\nthe judiciary law.\n (b) Such consent shall be executed or acknowledged before a notary\npublic or other officer authorized to take proof of deeds.\n (c) A copy of such consent shall be given to such parent upon the\nexecution thereof. The consent shall include the following statement:\n"I, (name of consenting parent), this ____ day of __________, _____,\nhave received a copy of this consent. (Signature of consenting parent)".\nSuch consenting parent shall so acknowledge the delivery and the date of\nthe delivery in writing on the consent.\n (d) The adoptive parent may commence the adoption proceeding in a\ncourt of competent jurisdiction other than the court named in the\nconsent provided that such commencement is initiated more than\nforty-five days after the consent is executed. Such commencement shall\nnot revive, extend or toll the period for revocation of a consent\npursuant to this section.\n 5. For the purposes of commencing an adoption proceeding, the clerk of\na court of competent jurisdiction shall accept an adoption petition for\nfiling which is complete on its face and shall not require any\nsupplementary documentation as a condition of filing. Nothing in this\nsection shall compel a court to hear an adoption petition until all\ndocuments necessary to the adoption proceeding have been filed to the\nsatisfaction of the court.\n 6. (a) A parent may revoke his consent to adoption only by giving\nnotice, in writing, of such revocation, no later than forty-five days\nafter the execution of the consent, or twenty days after the receipt of\na notice of denial, withdrawal or removal pursuant to paragraph (a) of\nsubdivision four of section seventeen hundred twenty-five of the\nsurrogate's court procedure act, whichever is later, to the court in\nwhich the adoption proceeding has been or is to be commenced. Such\nnotice shall set forth the name and address of the court in which the\nadoption proceeding is to be commenced, the address of the parent and\nmay, in addition, set forth the name and address of the attorney for the\nparent.\n (b) If, within forty-five days of the execution of the consent, the\ncourt has received such notice of revocation, the court shall promptly\nnotify the adoptive parents and their attorney, by certified mail, of\nthe receipt by the court of such notice of revocation.\n (i) Such notice to the adoptive parents shall set forth that if within\nfifteen days from the date of such notice the court has not received\nfrom the adoptive parents or their attorneys notice, in writing, of\ntheir intention to oppose such revocation by the parents, the adoption\nproceeding will be dismissed and that, in case of such dismissal, the\ncourt will send to the parents, the adoptive parents and their\nrespective attorneys the notice of dismissal, as provided in paragraph\n(c) of this subdivision.\n (ii) Such notice to the adoptive parents shall further set forth that\nif, within fifteen days from the date of such notice, the court shall\nreceive from the adoptive parents notice, in writing, of their intention\nto oppose such revocation by the parents, the court will, upon notice to\nthe parents, the adoptive parents and their respective attorneys,\nproceed, as provided in paragraph (d) of this subdivision, to a\ndetermination of whether such notice of revocation by the parents shall\nbe given force and effect and to a determination of what disposition\nshall be made of the custody of the child.\n (c) If the adoption proceeding is dismissed pursuant to the provisions\nof paragraph (b) of this subdivision,\n (i) Written notice of such dismissal shall forthwith be sent to the\nparent, the adoptive parents and their respective attorneys.\n (ii) Such notice of dismissal shall set forth the name and address of\nthe parent, the name and address of the attorney for the parent, if any,\nthe name and address of the attorney for the adoptive parents.\n (iii) Such notice of dismissal shall further set forth that if the\nchild is not returned to the custody of the parent within ten days from\nthe date of such notice of dismissal, the court will forthwith upon\nrequest, in writing, by the parent or by the attorney for the parent,\nfurnish to said parent or attorney so requesting, the names and address\nof the adoptive parents.\n (iv) Such notice of dismissal shall further state that, in the event\nthe custody of the child is not returned to the parent by the adoptive\nparents upon request therefor, a proceeding to obtain custody may be\ninstituted by the parent in the Supreme Court or the Family Court.\n (d) If, pursuant to the provisions of paragraph (b) of this\nsubdivision, the adoptive parents give timely and proper notice of their\nintention to oppose the revocation of the parent's consent:\n (i) The court shall promptly notify, in writing, the parent, the\nadoptive parents, their respective attorneys, and the attorney for the\nchild appointed pursuant to section two hundred forty-nine of the family\ncourt act or a guardian ad litem appointed pursuant to section four\nhundred three-a of the surrogate's court procedure act, that the court\nwill, upon the date specified in such notice by the court, or as soon\nthereafter as the parties may be heard pursuant to this paragraph, hear\nand determine whether revocation of the consent of the parent was timely\nand properly given and whether the adoptive parent's notice of intent to\noppose such revocation was timely and properly given and if necessary,\nhear and determine what disposition should be made with respect to the\ncustody of the child.\n (ii) The court shall, upon the date specified, take proof as to\nwhether the best interests of the child will be served by returning\ncustody of the child to the parents, or by the adoption of the child by\nthe adoptive parents, or by placement of the child with an authorized\nagency for foster care with or without authority to consent to the\nadoption of the child, or by other disposition of the custody of the\nchild.\n (iii) If the court determines that the best interests of the child\nwill be served by returning custody of the child to the parent or by\nplacement of the child with an authorized agency or by disposition other\nthan adoption by the adoptive parents, the revocation of consent shall\nbe given force and effect and the court shall make such disposition of\nthe custody of the child as will best serve the interests of the child.\n (iv) If the court determines that the best interests of the child will\nbe served by adoption of the child by the adoptive parents, the court\nshall enter an order denying any force or effect to the notice of\nrevocation of consent and shall dispose of the custody of the child as\nif no such notice of revocation had been given by the parent.\n (v) In such proceeding the parent or parents who consented to such\nadoption shall have no right to the custody of the child superior to\nthat of the adoptive parents, notwithstanding that the parent or parents\nwho consented to the adoption are fit, competent and able to duly\nmaintain, support and educate the child. The custody of such child shall\nbe awarded solely on the basis of the best interests of the child, and\nthere shall be no presumption that such interests will be promoted by\nany particular custodial disposition.\n 7. Nothing contained in this section shall limit or affect the power\nand authority of the court in an adoption proceeding, pursuant to the\nprovisions of section one hundred sixteen of this title, to remove the\nchild from the home of the adoptive parents, upon the ground that the\nwelfare of the child requires such action, and thereupon to return the\nchild to a birth parent or place the child with an authorized agency,\nor, in the case of a surrogate, transfer the child to the family court;\nnor shall this section bar actions or proceedings brought on the ground\nof fraud, duress or coercion in the execution or inducement of an\nadoption consent.\n 8. Notwithstanding any other provision of this section, a parent\nhaving custody of a child whose adoption is sought by his or her spouse\nneed only consent that his or her child be adopted by a named stepfather\nor stepmother.\n 9. Any consent to adoption subject to the provisions of this section\nshall include an adoption information registry birth parent registration\nconsent form, stating whether or not such biological parent or parents\nwhose consent is subject to the provisions of this section, consents to\nthe receipt of identifying information by the child to be adopted upon\nregistration with the adoption information registry established by\nsection forty-one hundred thirty-eight-c of the public health law and\nupon the adoptee reaching the age of eighteen. If such consent is made,\nit shall be revocable by either of the biological parents at any time.\nThe revocation of the consent by one of the parents shall revoke the\nconsent of both parents. The failure of a biological parent to complete\nthe consent form shall have no effect on the finality of the consent to\nadoption. A copy of the form required by this subdivision, shall be\nforwarded to the state adoption information registry for inclusion in\nthe records maintained by such registry. Any fees authorized to be\ncharged by the state adoption registry for filing documentation with\nsuch registry shall be waived for the form required by this subdivision.\n