MATTER OF ANONYMOUS

Vincent J. Finocchio, Jr., Syracuse, for respondent. Robert F. Rhinehart, Syracuse, for petitioner. Candace A. Belge, Liverpool, Law Guardian.

OPINION OF THE COURT

MICHAEL L. HANUSZCZAK, J. On March 5, 2001, petitioner mother, and her husband, filed a petition for adoption, seeking the court's approval of the proposed adoption of the subject child. The petitioner is the natural mother of the subject child; her husband seeks to adopt this child. The natural father of the child was incarcerated at the time of the filing of the adoption petition. He was released from a New York State correctional facility in April of 2001, and he was personally served with the notice of proposed adoption at the home of his parents on April 18, 2001. On April 10, 2001, petitioner mother filed a petition to modify a prior order of visitation, and order to show cause, seeking to suspend all rights of visitation of the respondent father, pending the proceedings on the separate, but related petition for adoption. The order to show cause, suspending visitation until further order of this court, was signed on April 11, 2001. The respondent filed a motion to dismiss the visitation modification petition on May 9, 2001, and oral argument was heard on May 15, 2001. Decision was reserved, and on June 19, 2001, this court issued a written decision denying respondent's motion to dismiss. A hearing on the adoption petition commenced September 6, 2001, and after five days of testimony, the hearing concluded on October 19, 2001, at which time this court reserved decision. This decision shall serve as the order of this court. The issue presented by this petition for adoption is controlled by Domestic Relations Law § 111, which directs whose consent must be secured before a child may be adopted. The petitioners assert in their petition (para [12] [a] at 4), that consent of the natural father to the proposed adoption is not required because "[t]he natural father has failed to maintain adequate contact and communication with the child, or the person having the care and custody of the child, for a period of six months or more." The petitioners further allege, in paragraph (12) (b) (at 4) of their petition, that "the natural father has failed to provide reasonable financial support for the benefit of the child." Domestic Relations Law § 111 directs that consent to the adoption of a child born out of wedlock, as here, is required of the mother (Domestic Relations Law § 111 [1] [c]), and of the natural father, where the child, as here, is more than six months old. (Domestic Relations Law § 111 [1] [d].) The consent of the father of an out-of-wedlock child over the age of six months is only required, however, if such father shall have maintained substantial and continuous or repeated contact with the child as manifested by (the following):

"(i) the payment by the father toward the support of the child of a fair and reasonable sum, according to the father's means, and either (ii) the father's visiting the child at least monthly when physically and financially able to do so and not prevented from doing so by the person or authorized agency having lawful custody of the child, or (iii) the father's regular communication with the child or with the person or agency having the care or custody of the child, when physically and financially unable to visit the child or prevented from doing so by the person or authorized agency having lawful custody of the child." (Domestic Relations Law § 111 [1] [d] [emphasis added].)

Pursuant to Domestic Relations Law § 111 (2) (a), consent shall not be required of a parent who evinces his intent to forego parental rights and obligations as manifested by his failure for a period of six months to visit or communicate with the child. The courts have held that a parent's attempts to exercise visitation rights after the filing of the petition for adoption are of no legal significance. (Matter of Ryan Paul L., 112 AD2d 47 [4th Dept 1985].) It is the six months immediately preceding the filing of the petition for adoption that will be scrutinized by the court. (Domestic Relations Law § 111; Social Services Law § 384-b.) In Matter of Kaitlyn D. (184 Misc 2d 150 [Fam Ct, Suffolk County 2000]), the Family Court of Suffolk County held that the date of notice, whether actual or constructive, is the "critical measuring date" from which the six months is to be counted. In that case, the court was confronted with an inexplicable court's findings that a father has failed to maintain the required substantial and continuous contact with his child. The court notes that while incarcerated, the respondent father himself applied to have his child support obligation reduced. The respondent father maintains that he was under the belief he could not have contact of any kind with his daughter. He did not, however, make any attempt to petition the Family Court to have contact with the child reinstated, or permitted on a limited basis. The standard in petitions for the adoption of a child where it is alleged that the consent of the natural father is not required is no longer a "flicker of interest." The respondent father here has not met his burden of clear and convincing evidence that he has maintained the requisite contact as set forth in Domestic Relations Law § 111. This court therefore finds that the consent of the respondent father herein is not required for the adoption of the subject child. Accordingly, further proceedings on the adoption petition, docket number A-49-01, will be scheduled by the court and the petitioners will be notified of their appearance date. By order to show cause, this court previously ordered, on April 11, 2001, that all rights of visitation of the respondent be suspended until further order of this court. In accordance with this court's findings in the instant matter, petitioners' counsel is hereby ordered to prepare an order permanently revoking all rights of visitation for the respondent under docket number V-576-01, given this court's decision under docket number A-49-01.