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LAW AND THE FAMILY

The 'Child's Best Interests' in Adoption Cases

By Joel R. Brandes and Carole L. Weidman

New York Law Journal (p. 3, col. 1)
November 28, 1995

         THE MOST RECENT New York Court of Appeals decision on adoptions 
     deserves praise for its openness and genuine commitment to 
     children's rights. Having given the green light to adoptions by 
     homosexuals it may be one of the most heralded gay rights cases. 
     Across the country, wide-ranging decisions are coming down involving 
     custody, adoption and gays. In March, California banned adoption by 
     gay couples; in Illinois, in July, a lesbian couple was granted the 
     right to adopt a child conceived by one of them.
         In  Matter of Jacob and Matter of Dana,*1 the Court of Appeals 
     asserted, 4-3, its expanding role and ability to reflect the times 
     by saying that children come first in adoption, to the exclusion of 
     all else including prejudices or historical conservatism. It held 
     that the unmarried partner of a child's biological mother, whether 
     heterosexual (Jacob) or homosexual (Dana), who is raising the child 
     together with the biological parent, has standing to become the 
     child's second parent by means of adoption. In a deeply moving and 
     socially enhancing decision, the Court stated,
     To rule otherwise would mean that the thousands of New York children 
     actually being raised in homes headed by two unmarried persons could 
     only have one legal parent, not the two who want them.
         The dissenters argued that there was no express legislative 
     authority for such adoptions.
     
     The Mother's Relationship
     
         In Matter of Jacob the Family Court denied the adoption by the 
     biological mother's heterosexual partner on the ground that Domestic 
     Relations Law (DRL) Sec.110 does not authorize adoptions by an 
     unmarried couple. In Matter of 
     Dana, the court denied the adoption, by the child's biological 
     mother and her lesbian partner, of a child conceived by artificial 
     insemination, on the ground of lack of standing and on the further 
     ground that the adoption was prohibited by DRL Sec.117, which had 
     been construed as requiring the automatic termination of the 
     biological parent's relationship with his or her child upon the 
     child's adoption by someone not married to the parent.
         The Court of Appeals held that appellants had standing to adopt 
     under DRL Sec.110 and were not foreclosed from doing so by DRL 
     Sec.117. It reversed in each case and remitted to Family Court for a 
     determination as to whether the adoptions would be in the best 
     interest of the children. Its analysis is based upon the proposition 
     that while the ``the adoption statute must be strictly construed'':
     What is to be construed strictly and applied rigorously in this 
     sensitive area of the law, however, is legislative purpose as well 
     as legislative language. Thus, the adoption statute must be applied 
     in harmony with the humanitarian principle that adoption is a means 
     of securing the best possible home for the child  . . . .
         The Court examined the history of New York's adoption laws, 
     noting that since their passage in 1873, the statutes that comprise 
     adoption law have been amended so many times that it is ``a complex 
     and not entirely reconcilable patchwork.'' Nonetheless, first and 
     foremost is the primary legislative purpose of the statute -- ``the 
     child's best interest.''
         The Court concluded that choosing not to construe the words of 
     the statute strictly would advance the legislative policy in 
     situations such as those presented here by allowing the two adults 
     who actually function as the child's parents to become the child's 
     legal parents. It listed both the financial and emotional advantages 
     of permitting such adoptions.
         The Court rejected on policy grounds a reading of DRL Sec.117 
     that would automatically terminate the parental rights of the 
     biological parent in such cases and preclude the adoptions here. 
     ``An interpretation of the statute that avoids such discrimination 
     or hardship is all the more appropriate here where a contrary ruling 
     could jeopardize the legal status of the many New York children 
     whose adoptions by second parents have already taken place.'' It 
     held that the legislative purpose behind the statute ``was never 
     intended as a sword to prohibit otherwise beneficial intrafamily 
     adoptions by second parents.''
         Adoption is a legal proceeding whereby a person takes another 
     person into the relation of child and acquires the rights and incurs 
     the responsibilities of parent.*2 Once an adoption has properly 
     occurred, the ties between the adoptee and the adoptee's biological 
     parents are severed.
         DRL Article 7 defines the persons who may adopt another and sets 
     forth the procedure to be followed. An adoption may be either by 
     means of a private transaction between individuals, which is 
     referred to as a ``private-placement'' adoption,*3 or it may be 
     arranged between an agency set up for the placement of children and 
     prospective adoptive parents, which is referred to as an 
     ``authorized agency adoption.''*4 In private-placement adoptions, 
     all procedures from inception through the order of adoption are 
     governed by the DRL.*5 In authorized-agency adoptions, all 
     preliminary procedures up to the petition for adoption are governed 
     by the Social Services Law.*6
     
     Creature of Statute
     
         In New York adoption is solely a creature of statute. No lawful 
     adoption may occur outside the framework of statute.*7 Adoption can 
     only be accomplished by virtue of a proceeding under the DRL.*8 DRL 
     Sec.110 specifically declares that no person shall be adopted except 
     in pursuance thereof and under the conditions prescribed therein. 
     There must be strict and exact compliance with all essential parts 
     of the adoption statute.*9 The Family Court has original concurrent 
     jurisdiction with the Surrogate's Court over adoption proceedings 
     under DRL Article 7.*10
         DRL Sec.110 provides that the following categories of persons 
     may legally adopt*11:
         an adult unmarried person or husband and his adult wife together;
         an adult married person who is living separate and apart from 
     his or her spouse pursuant to a decree or judgment of separation or 
     pursuant to a written agreement of separation subscribed by the 
     parties and acknowledged or proved in the form required to entitle a 
     deed to be recorded;
         +an adult or minor husband and his adult or minor wife together 
     may adopt a child of either of them born in or out of wedlock and an 
     adult or minor husband, or adult and minor wife may adopt such a 
     child of the other spouse.
         New York legislation, in designating who may adopt, provides 
     that such designated persons ``may adopt another person'' and, thus, 
     permits the adoption of an adult as well as the adoption of a 
     minor.*12 An adult adoption is permissible so long as there is no 
     insincere or fraudulent purpose.*13 In fact, adult adoptions are 
     sometimes treated more liberally by the New York courts than minor 
     child adoptions.*14
         A person may desire to adopt an adult for any one of a variety 
     of reasons. For example, an adult might seek to contract for an 
     adoption with the intention of achieving the same result as a valid 
     will.*15
     
     Adoption of Adult
     
         New York courts have noted that adoption sometimes is sought by 
     an adult for purposes which are purely economic, such as the 
     beneficial impact of an adoption upon insurance, inheritance or tax 
     or upon the right under local rent-control ordinances or laws to the 
     continued occupancy of an apartment by a particular tenant or 
     ``member of the tenant's family.'' In considering the propriety of 
     an adult adoption, the courts are guided by whether the adoption 
     will promote the temporal and moral interests of the prospective 
     adult adoptee.*16
         Illustrative is Re Adoption of Elizabeth P.S.,*17 an ``adult 
     adoption,'' between two females who were 49 and 48 years old. The 
     adopter was a nun on life leave who met the adoptee while assigned 
     to work at a facility for troubled females where the adoptee had 
     been placed as a child. She fulfilled the role of parent, providing 
     leadership, guidance, nurturing care and affection for the adoptee 
     who in turn looked to the adopter for the guidance and maturity that 
     a parent normally gives.
         It has been held by appellate courts that since consensual adult 
     homosexuality is not a crime in New York, and since judicial 
     interference with the right of adult adoption because of the sexual 
     preference of the parties is not warranted on grounds of public 
     policy, neither the best-interests-of-thechild standard nor public 
     policy nor public morality considerations would operate as a bar to 
     the adoption of a 26-year-old male by a 22-year-old male, despite 
     their homosexual relationship, where the adoption was sought for 
     credible legal and economic reasons.*18
         In addressing itself to the propriety of one adult adopting 
     another adult for the purpose of permitting continued apartment 
     tenant occupancy under local rent control legislation, the court 
     explained that the ``nuclear family'' arrangement is no longer the 
     only model of family life in America but rather that the realities 
     of present-day urban life allow many different types of 
     nontraditional families. It held that the statutes involved did not 
     permit a court to deny an adoption petition simply on the basis of 
     any one court's view of what is the nature of the family.*19
          In Matter of Robert Paul P.,*20 the Court of Appeals refused to 
     allow the adoption of a 50-year-old man by his 57-year-old 
     homosexual partner ``solely because the adoption would have been 
     wholly inconsistent with the underlying public policy of providing a 
     parent-child relationship for the welfare of the child.''
         While the DRL provides that a husband and wife generally must 
     adopt together, thus making an adoption by one without the other 
     illegal,*21 provision is made in DRL Sec.110 for the adoption by a 
     husband, or a wife, of the child of the other spouse whether born in 
     or out of wedlock.
         In one case, the biological father of an illegitimate child, 
     with the consent of the biological mother of that child, was allowed 
     to adopt the child. The biological mother at the same time was 
     allowed to preserve her parental rights and obligations in regard to 
     the child, although the parents refused to wed, the court holding 
     that such procedure served the best interests of the child and that 
     the refusal of the biological parents to wed should not contravene 
     the policy of the state to foster the child's best interests above 
     all else.*22
         On another front, an unmarried adult mother was permitted to 
     adopt her illegitimate child.*23 The court acknowledged that in most 
     instances, such an adoption was unnecessary since she alone already 
     had the right of custody to her child, and the rights of inheritance 
     existed between them; however, the mother had caused the records of 
     the child's birth to be made in a surname different from her own and 
     desired to give the child her own name, adoption being the most 
     practical means of accomplishing this objective. Notably, adoption 
     by a single person generally has been sought and approved only in 
     exceptional circumstances, and in particular for the hard-to-place 
     child for whom no ``desirable'' parental couple is available.*24
     
     
     notes
         (1) ---- NY2d ---- , New York Law Journal, Nov. 3, 1995, p.25, 
     col.1.
         (2) See DRL Sec.110.
         (3) DRL Sec.109(5).
         (4) See DRL Sec.109(4) and Social Service Law Sec.371(10)(b), 
     which define ``authorized agency.''
         (5) DRL, Art 7; Re Nicky (1975) 81 Misc2d 132.
         (6) SSL Sec.Sec.371-392; Re Nicky, supra.
         (7) DRL Sec.110; Matter of Eaton, 305 NY 162.
         (8) Re Buss (1932) 234 App Div 299, 254 NYS 852; Carroll v. 
     Collins (1896) 6 App Div 106, 40 NYS 54; Re Anonymous (1948, Sur.) 
     85 NYS2d 358; Re Pierro (1940) 173 Misc 123.
         (9) Re Estate of Mazzeo (1983, 3d Dept) 95 AD2d 91; Re Adoption 
     of XX (1980, 3d Dept.) 77 AD2d 381, affd 54 NY2d 417, 430 NE2d 896, 
     affd 463 US 248, 77 LEd2d 614, 103 S Ct 2985.
         (10) Const. Art. IV Sec.13(b). FCA Sec.641.
         (11) DRL Sec.110.
         (12) DRL Sec.110; Re Buckingham's Estate (1949) 194 Misc 297.
         (13) Re Adult Anonymous II (1982, 1st Dept) 88 AD2d 30.
         (14) Re Estate of Mazzeo, supra.
         (15) Stevens v. Halstead (1917) 181 App Div 198, 168 NYS 142.
         (16) Re Adult Anonymous II, supra.
         (17) (1986) 134 Misc2d 144.
         (18) Re Anonymous (1981) 106 Misc2d 792.
         (19) Re Adult Anonymous II, supra.
         (20) 63 NY2d 233 (1985)
         (21) Re O'Keefe (1937) 164 Misc 473, 300 NYS 27; Re R. (1975) 81 
     Misc2d 436.
         (22) Re J. (1981) 108 Misc2d 657.
         (23) Re Anonymous Adoption (1941) 177 Misc 683.
         (24) Adoption of H. (1972) 69 Misc2d 304.
----------------
Joel R. Brandes and Carole L. Weidman have law offices in New York City 
and Garden City. They co-authored, with the late Doris Jonas Freed and 
Henry H. Foster, Law and the Family, New York (Lawyers' Co-Operative 
Publishing Co., Rochester, N.Y.) and co-author the annual supplements.