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Step-parent Adoption in New York State

Step-parent adoption requires the termination of the biological parent’s parental rights. This means that once the adoption occurs, the biological parent no longer has an obligation to pay child support.

In Lehr v. Robertson, 463 U.S. 248, 268 (1983) the Court held that despite a heightened burden of proof, parental rights are not absolute. “One must reach out and grasp the rights of parenthood to aid in rearing their biological child. Id. In order to "grasp the rights," of parenthood, one must establish: custodial relationship; financial responsibility; or show they have assumed significant responsibility with respect to child care.”

Notwithstanding the holding in Lehr, unless a biological parent is willing to consent to a step-parent adopting the child, it is extremely difficult (and costly) to accomplish this. However, there are circumstances under which a stepparent adoption may occur. DRL §111(1)(b) requires consent from the "parents or surviving parent, whether an adult or infant, of a child conceived or born in wedlock." The Appellate Division, Second Department has held that in adoption proceedings a putative parent's consent is not needed when they fail to establish a course of substantial and continuous contact with the child through payment of support and either regular visitation or communication. In re Tanay R.S., 122 A.D.3d 865, 866 (2d Dep’t 2014). If the putative parent can establish they have in fact abided by these standards, it is highly unlikely their parental rights will be terminated and a putative father's consent would be required.

Further, a petition may be maintained pursuant to Social Services Law 384-b on the grounds of negligence or abandonment. In this type of proceeding, there must be clear and convincing evidence that the biological parent is negligent or abandoned the child. Courts are more reluctant to terminate rights under this article because of the heightened standard of review.

In addition, there are residency requirements for an adoption to occur (i.e., the stepparent must be legally married to the child’s parent and living together for six months before filing a petition).

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