Surrogate’s Court as the Proper Forum for Adoption-Based Abandonment; Dismissal of Parallel Family Court Custody Petitions Used as De Facto Termination Proceedings

1. Introduction

Matter of Jason TT. v. Linsey UU. (Appellate Division, Third Department) addresses a recurring procedural problem: when a custodial parent seeks to leverage a Family Court custody/visitation modification petition to obtain findings of “abandonment” that would effectively clear the way for a partner’s adoption—despite the fact that the adoption itself is (or should be) litigated in Surrogate’s Court under the Domestic Relations Law.

The parties are the children’s biological parents. A 2022 consent order gave the father sole legal and physical custody with a graduated parenting-time schedule for the mother. In 2023, the father filed (initially pro se) a Family Court Act article 6 petition and order to show cause seeking suspension of the mother’s visitation and “removal” of her parental rights based on “abandonment,” expressly to enable adoption by his paramour. The paramour later filed adoption petitions in Surrogate’s Court.

The key issues on appeal were: (1) whether the father had standing or authority to pursue a termination-of-parental-rights-like remedy through Family Court; (2) whether Family Court should retain the matter to conduct an “abandonment” fact-finding parallel to the pending Surrogate’s Court adoption case; and (3) which court is the appropriate forum to adjudicate the adoption-centered abandonment question.

2. Summary of the Opinion

The Third Department reversed Family Court’s nondispositional order denying the mother’s motion to dismiss and held that the petition should be dismissed. Although Family Court has broad article 6 jurisdiction over custody and visitation and shares adoption jurisdiction with Surrogate’s Court, the appellate court emphasized that this case was functionally an adoption-driven effort to establish abandonment—an issue that Surrogate’s Court must decide under the Domestic Relations Law evidentiary framework governing adoption.

The court concluded that allowing Family Court to litigate abandonment “on parallel tracks” with Surrogate’s Court would be unnecessary and prejudicial, particularly because the paramour (the adoption petitioner) was not a party to the Family Court proceeding. The decision further noted that the suspension of the mother’s visitation (ordered in Family Court) should not trigger the Domestic Relations Law presumption of ability to visit/communicate for any period during which visitation was suspended.

3. Analysis

3.1. Precedents Cited

Matter of Matthew TT. v Erin TT.

The opinion relies on Matter of Matthew TT. v Erin TT. for the standard governing prehearing motions to dismiss in Family Court: petitions are to be liberally construed; alleged facts accepted as true; the petitioner receives favorable inferences; and credibility questions are resolved in the petitioner’s favor. The Third Department, however, treats that liberal standard as not dispositive here because the father and his counsel repeatedly clarified that the true purpose of the filing was not a conventional article 6 modification, but rather termination of parental rights to facilitate adoption. Thus, even under a liberal pleading regime, courts must “take due account” of undisputed clarifications showing the petition seeks relief the petitioner cannot legally obtain in that forum or posture.

Matter of Cadence SS. [Amy RR.—Joshua SS.]

Matter of Cadence SS. [Amy RR.—Joshua SS.] is cited for the standing/authorization principle: private individuals generally are not authorized to initiate termination of parental rights proceedings in the manner reserved to authorized agencies under the Social Services Law framework. In this case, the father’s filing sought “removal” of parental rights due to abandonment. The Third Department affirmed Family Court’s recognition that the father was not authorized to commence termination proceedings (referencing Social Services Law § 384-b[3][b]) and underscored that the paramour—not the father— is the proper adoption petitioner under Domestic Relations Law § 110.

Matter of Corey L v Martin L

The court invokes Matter of Corey L v Martin L to define abandonment “as it pertains to adoption”: conduct evincing a purposeful shedding of parental obligations and rights—“a withholding of interest, presence, affection, care and support.” This definition situates abandonment as a concept with a specific statutory and doctrinal function in adoption proceedings, reinforcing the court’s conclusion that the abandonment determination belongs in the adoption forum applying the adoption statute’s evidentiary criteria.

3.2. Legal Reasoning

The decision’s reasoning proceeds in four main steps:

  1. Concurrent jurisdiction does not mean duplicative litigation is appropriate. The court acknowledged that both Family Court and Surrogate’s Court have jurisdiction over adoption matters (Domestic Relations Law article VII; Family Ct Act § 641; NY Const, art 6, §§ 12[d], 13[b][3]). But jurisdictional overlap does not justify parallel proceedings when one court must apply a distinct statutory scheme and decide the core issue anyway.
  2. Identify the proceeding’s true nature and requested relief. Although captioned as an article 6 modification, the father repeatedly stated the purpose was to terminate the mother’s parental rights due to abandonment so the paramour could adopt. Family Court itself had already held it could not convert the petition into an adoption petition and could not terminate parental rights “outside of an agency” proceeding. That acknowledgement undermined continuing the petition as a vehicle for quasi-termination findings.
  3. Allocate the abandonment question to the forum whose statute supplies the governing evidentiary criteria. Once the paramour filed adoption petitions in Surrogate’s Court, Surrogate’s Court was required to decide abandonment under Domestic Relations Law § 111, including the evidentiary criteria in Domestic Relations Law § 111(6)(a)-(d). The Third Department contrasted that adoption-specific framework with the article 6 custody-modification context, where those statutory criteria “do not expressly apply.” In other words, Family Court fact-finding on “abandonment” in a custody case risks applying a different lens than the one controlling the adoption—making duplication not only inefficient but potentially distorting.
  4. Avoid prejudice and protect party alignment. Parallel adjudication was “unnecessary and prejudicial,” especially because the paramour—the adoption petitioner—was not a party in Family Court. Proceeding in Family Court would produce findings affecting the adoption without the adoption petitioner formally joined in that action, raising fairness and process concerns (and inviting inconsistent or strategically leveraged findings).

The opinion also corrected Family Court’s assumption that the mother would be unrepresented in Surrogate’s Court, noting that SCPA 407(1)(a)(iii) requires assignment of counsel for an indigent parent opposing an adoption.

3.3. Impact

Forum-channeling for abandonment in adoption contexts. The decision sets a practical rule: when the real objective is adoption and an adoption petition is pending, abandonment should be adjudicated in Surrogate’s Court under Domestic Relations Law § 111(6), and Family Court article 6 proceedings should not be used as a parallel (or substitute) fact-finding track to establish abandonment for adoption purposes.

Limits on “creative” pleading in custody modifications. Litigants may attempt to plead “abandonment” in article 6 proceedings to achieve termination-like consequences without meeting the standing and procedural protections required for termination or adoption. This opinion discourages that pathway and signals that courts will examine the stated purpose and procedural posture, not merely the petition’s caption.

Guardrails against inconsistent findings. By rejecting parallel proceedings, the decision reduces the risk of inconsistent factual findings on abandonment and prevents one court’s determinations from unduly influencing the other, especially where the governing standards differ.

Practical guidance on the Domestic Relations Law § 111(6) presumption. The court’s footnote indicates that the presumption in Domestic Relations Law § 111(6)(a)—that the parent was able to visit and communicate during the relevant six-month period—“should not apply” for periods when visitation was suspended. This is likely to be cited in future adoption disputes where a custodial parent obtains a suspension order and then argues the noncustodial parent failed to maintain contact.

Judicial assignment sensitivity. The opinion flagged that the same judge was assigned in both Family Court and Surrogate’s Court matters and suggested reassignment in Surrogate’s Court under these circumstances. While framed as a case-specific view, it underscores an institutional concern: even where a single judge can serve in multiple capacities, litigant confidence and procedural clarity may warrant separate assignment when one proceeding is effectively displaced in favor of the other.

4. Complex Concepts Simplified

  • “Standing” / “authorized to initiate” termination proceedings: Not every private party can start a termination of parental rights case. New York generally channels termination proceedings through authorized agencies (e.g., under Social Services Law § 384-b), with defined protections and procedures. A private custody petition cannot be repurposed to obtain termination relief simply by using the word “abandonment.”
  • “Abandonment” in adoption vs. custody contexts: “Abandonment” is a statutory ground that can allow an adoption to proceed without a parent’s consent, but it is assessed under Domestic Relations Law § 111(6) and related doctrine (including the understanding described in Matter of Corey L v Martin L). A custody modification focuses on changed circumstances and best interests; it does not automatically import the adoption statute’s abandonment tests.
  • “Parallel tracks”: Two courts simultaneously deciding the same core factual issue (abandonment) under potentially different legal standards. This can waste resources and create unfairness or inconsistent outcomes.
  • “Nunc pro tunc”: A request to treat a later filing or conversion as if it occurred earlier. Here, the father sought to convert his petition into an adoption petition “nunc pro tunc,” but Family Court rejected it because essential elements were missing and the paramour was the proper adoption petitioner.
  • Domestic Relations Law § 111(6)(a) presumption (ability to visit/communicate): In certain abandonment analyses, the law may presume a parent was able to maintain contact during a defined period. The court cautioned that such a presumption should not apply when a court order suspends visitation, because the parent’s ability to contact is legally constrained.

5. Conclusion

Matter of Jason TT. v. Linsey UU. clarifies that when a custody/visitation modification petition is effectively an attempt to establish abandonment for the purpose of facilitating a partner’s adoption, and an adoption petition is pending, Surrogate’s Court is the proper forum to decide abandonment under the Domestic Relations Law framework. The Third Department’s reversal prevents duplicative and potentially prejudicial parallel litigation, reinforces standing limits on private termination efforts, and provides important guidance that adoption-based abandonment presumptions should not be wielded against a parent during periods when court-ordered visitation is suspended.