Q: My son's father hasn't seen, talked, or anything of that nature to my son for 3months and 2weeks. What should I do? NYS
My son's father hasn't seen or talked to my son in 3months and 2weeks. He says he wants him but doesn't show, he tells me every visitation time that he doesn't want him either the day before or the day of. I'm sick of him doing this to him. My fiance wants to adopt my son as well because he's been there for my son, where as his father hasn't been in the picture for him much. My son is 4. My son doesn't deserve to be treated that way. He shown nothing but love here and with his father, he shows him he doesn't actually want him and doesn't care. What do I do? He won't sign his rights over either. We live in NYS right now.
A:
In order for your Fiancé to adopt your child, the father must either agree to give up his parental rights in writing or a basis must be established that would justify terminating the father's parental rights. Under New York Statute, the court is authorized to terminate parental rights where there is a showing the parent abandoned the child. Other justifications include permanent neglect, mental illness, or upon a finding of a significant intellectual disability.
Based on the facts that you have described, it appears the father will not agree in writing to give up his parental rights and the only possible basis is abandonment.
Under New York law, a child is “abandoned” by his parent if the parent demonstrates an intent to give up his parental rights. This intent may be shown by the parent failing to visit the child and communicate with the child. The intent is particularly present where the parent has the ability to visit and communicate with the child but decides not to do so. However, unless the father provides evidence that he is not able to communicate with the child, the court will assume he is capable of doing so but chooses not to.
Based on the facts you have described, it is difficult to say whether or not there is enough to justify a finding that the father abandoned the child. Does he still speak with the child over the phone? How often does he? What are the reasons he has been unable to make the visits? All of these questions and many others are relevant to the determination. I suggest you consult an attorney who can provide you with sound legal advice based on the facts of your case. Because I do not have all of the necessary information, this certainly is not legal advice and should not be relied on as legal advice.
Best,
Andrew Tabashneck, Esq.
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