Adoptions

  1. What is adoption?:
  2. The best definition I can think of for adoption is found in the third, short paragraph of DRL §110:

    “Adoption is the legal proceeding whereby a person takes another person into the relation of child and thereby acquires the rights and incurs the responsibilities of a parent in respect of such other person.”

    Basically, an adoption occurs after the parental rights of the child’s biological parents (or, possibly, other adoptive parents) have been surrendered or terminated through proceedings in Family Court. Once an order of surrender or an order of termination of parental rights is issued by the Family Court, an adoption proceeding can be initiated.

    Adoption was first allowed by law in New York State in 1873. Today the law allows “an adult unmarried person or an adult husband and his adult wife together” to adopt another person, pursuant to DRL §110.

  3. What is the law that applies to adoption?:
  4. Adoptions are governed by a variety of statutes, the most important of which are Article 7 of the Domestic Relations Law (DRL), Article 6 of the Family Court Act (FCA), and Article 6 of the Social Services Law (SSL), and navigating the procedures involved in an adoption can be very difficult and time-consuming. The primary reason for this difficulty is that each and every applicable statute must be strictly complied with since adoption is entirely a creation of statutory law. However, above all else, the overarching theme of adoption is that found within the family law itself: the best interests of the child.

  5. Which courts have jurisdiction over adoption?:
  6. Two courts have concurrent jurisdiction over adoptions: the Family Court and the Surrogate’s Court, pursuant to Article 6, Sections 12(d) and 13(b)(3) of the New York State Constitution, FCA §115(c) and 641. Theoretically, the Supreme Court also has jurisdiction over adoptions, but it has rarely exercised this jurisdiction and if an action for adoption was brought in Supreme Court, it would likely either be dismissed (without prejudice) or transferred to Family Court or Surrogate’s Court.

  7. Where do I file the paperwork for adoption?:
  8. Because both Family Court and Surrogate’s Court have concurrent jurisdiction over adoptions, the best bet is to contact either an attorney who practices in these courts, or the courts themselves, to find out what the local practice is. Downstate, adoptions tend to be filed in Surrogate’s Court, while Upstate tends to have adoptions filed in Family Court. Of course, this is a general rule and the courts need to be consulted before any proceeding is filed. Oftentimes, peripheral matters such as the need for the appointment of a guardian ad litem (Surrogate’s Court) or for a determination of paternity (Family Court) may dictate which of the two courts to use.

  9. What kinds of adoptions are there?:
  10. In New York State, there are essentially two (2) different kinds of adoption: private placement adoptions and authorized agency adoptions. Title 3 of Article 7 of the Domestic Relations Law (DRL) deals with private placement adoptions while Title 2 of Article 7 of the Domestic Relations Law (DRL) deals with authorized agency adoptions.

    Private placement adoptions are adoptions that occur between the biological parents and the prospective adoptive parents. Private placement adoptions are governed almost exclusively by the Domestic Relations Law (DRL) from commencement to conclusion.

    Authorized agency adoptions are adoptions that occur between an agency empowered by law to engage in adoptions (often a county department of social services) and the prospective adoptive parents. Authorized agency adoptions are governed by both the Social Services Law (SSL) and the Domestic Relations Law (DRL).

  11. Who are the necessary parties involved in an adoption?:
  12. The necessary parties are the prospective adoptive parents, the biological parents, and the child, if the adoption is a private placement adoption. There are some exceptions to this rule, especially with regard to biological fathers.

    The necessary parties are the prospective adoptive parents, the authorized agency (usually a county department of social services or one of its agencies), the biological parents (whose parental rights must be terminated before any adoption can occur), the child, the current foster parents of the child to be adopted, and any members of the child’s extended family who may have filed a petition for custody with the court. Also, there each of these necessary parties could be represented by counsel, thereby making the number of people involved potentially quite large, especially where more than one child is involved.

  13. What happens next?:
  14. What happens next is the complicated part. Adoptions revolve around five (5) basic issues: 1) the eligibility of those who wish to adopt, 2) the consent to adopt, 3) the notice requirements for adoption, 4) the voluminous and specific paperwork required for the adoption, and 5) the orders which allow the adoption to occur and become final.

  15. How long does it take until an adoption becomes final?:
  16. That is the key question, isn’t it? The answer is “it depends”. I have never heard of an adoption occurring in less than six (6) months, though it is certainly possible. The likelihood is that an adoption will take at least a full year and possibly even longer. I was involved in one particular case involving an adoption that took almost four (4) years, but only because it was hotly contested and then appealed.

  17. How much do you charge for an adoption?:
  18. The retainer for an adoption is $2,500.00, though it could cost more, depending upon the many factors involved in each adoption, and the number of court appearances involved. Every adoption is different from one another as each has its own distinct facts. While most of the cost pertains to completing the voluminous paperwork involved, multiple court appearances add to the cost as well.

    However, you need to remember that because I only bill my clients at a rate of $100.00 per hour, the $2,500.00 retainer purchases twenty-five (25) hours of my time.

  19. When does the adoption become final?:
  20. The adoption becomes final thirty-six (36) days after the court enters and mails an order of adoption to all of the necessary parties to the adoption. The thirty-six (36) day waiting period is to ensure that no appeals are filed with the court challenging the order of adoption. Any notice of appeal must be filed within thirty-five (35) days after the order of adoption was placed in the mail by the court. If a notice of appeal is filed on the thirty-sixth day after the order of adoption has been mailed by the court, then the notice of appeal is untimely and the appeal will very likely not be heard by the appellate court.

    However, the longer the wait, the greater the likelihood that no appeal will be filed to challenge the order of adoption. Perhaps a safer waiting period is forty-five (45) or even sixty (60) days. In any event, once it becomes clear that either a notice of appeal has not been filed – or that it has been filed too late (i.e., after thirty-five (35) day deadline) – then the order of adoption becomes final.

So, call me: I can help you.

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