Can Children Be Adopted by An Unmarried Individual or a Married Man Seperated from Spouse ?
In Matter of Jacob (86 NY2d 651, 658 ), the Court allowed the homosexual partner of a biological parent to adopt the child of that individual.
The Court noted that the purpose of the adoption statute was to further the best interests of children.
In Jacob, however, the prospective adoptive parent was an unmarried individual.
Under the clear language of Domestic Relations Law 110, an unmarried person has standing to adopt. the Court even noted that "the statute uses the word 'together' only to describe married persons and thus does not preclude an unmarried person in a relationship with another unmarried person from adopting." (Id. at 660.)
The statute does, however, preclude a married individual in an intact marriage from adopting without his/her spouse.
Moreover, the Court in Jacob never advocated contravening the clear language of the statute to confer standing on an individual.
In fact, the Court in Jacob stated that both the language of the statute as well as its legislative intent must be strictly construed. ( Id. at 659.)
In 1984 and again in 1991, Domestic Relations Law 110 was amended to allow married adults to adopt without their spouses under certain circumstances.
Those circumstances are the ones that are currently delineated in Domestic Relations Law 110.
In 1984 (L 1984, ch 218, 1), the statute was amended to allow a married individual who is living separate and apart from his/her spouse to adopt when there is a judgment of separation or a written agreement of separation.
In 1991 (L 1991, ch 254, 1), the statute was amended again to allow a married individual who is living apart from his/her spouse for at least three years to adopt.
The clear intent of the Legislature in amending the statute was to enable more children to be adopted.
In expanding the definition of who may adopt, the Legislature placed certain safeguards in the statute to ensure that only certain married individuals could adopt.
It is clear to this court that the Legislature intended that only married individuals who evince a clear intent to live separate and apart from their spouses should be able to adopt alone and that intact married couples must adopt together.
In Matter of Jessalyn AA, (276 AD2d 97 [3d Dept 2001]), the Appellate Division affirmed a lower court's finding that a petitioner whose wife did not join in his application to adopt a child lacked standing under Domestic Relations Law 110.
The Court stated:
"In reviewing the adoption statute, which must be strictly construed ... we find the language of the statute free from ambiguity and a plain, clear and distinct expression of legislative intent ... We note particularly that the failure of the Legislature to include a provision in Domestic Relations Law 110 allowing prospective adoptive parents in petitioner's situation to file a petition for adoption is considered presumptively intentional." (Id. at 98.)
This court agrees. Moreover, the court also believes that allowing only one half of a married couple to adopt would detract from the child's permanency. As stated by the Court of Appeals in Jacob:
"Granting a second parent adoption further ensures that two adults are legally entitled to make medical decisions for the child in case of an emergency and are under a legal obligation for the child's economic support...
"Even more important, however, is the emotional security of knowing that in the event of the biological parent's death or disability, the other parent will have presumptive custody, and the children's relationship with their parents, siblings and other relatives will continue should the coparents separate." (Jacob at 658-659.)