Occasionally someone comes to consult with me and tells me that the biological parent of their child wants to terminate his or her parental rights voluntarily. My typical response is, that even in a situation where the parent is willing to give up those rights voluntarily, they will not be terminated unless the child is adopted by a step-parent. Because of the strong public policy considerations against depriving children of their parent’s emotional and financial support, New York requires that someone else must step into the shoes of the biological parent, who no longer wishes to be a part of the child’s life. The adopting step-parent must want to undertake the financial and legal responsibility for the child and also to agree to release the non-spouse biological parent of their parental responsibilities.
New York law requires that the child’s parents both consent to the adoption, unless:
1) The parent has failed to visit and communicate with the child for six months.
2) The parent is mentally ill or mentally retarded and is unable to care for the child.
3) The parent has surrendered to an authorized agency under social services law.
4) The parent’s child has had a guardian appointed under social services law.
5) The parent has executed an instrument, which is irrevocable, denying the paternity of the child.
Once the step-parent has agreed to adopt the child, the child’s consent may be necessary. New York law requires the consent of children over fourteen years of age, unless the judge or surrogate in his or her discretion dispenses with such consent. Once the adoption is finalized and the order of adoption has been entered, the former parent will no longer be required to pay child support, but will continue to be responsible for arrears in child support. Also, the child’s birth certificate may be updated to replace the biological parent’s name with step-parent’s. In New York, step-parent adoption can be handled by either Family Court or Surrogate Court.
In addition to the step-parent adoption, parental rights may be terminated by a court of competent jurisdiction which has determined the child to be an abandoned child and the authorized agency, having care of the child, files a petition seeking termination of parental rights.