ADOPTION OF CHILDREN. (Fiero, Spec. Pro., 3rd Ed., pp. 61-82.) Art. I. Voluntary adoption and abrogation. ARTICLE I. VOLUNTARY ADOPTION AND ABROGATION. (Fiero, Spec. Pro., 3rd Ed., pp. 61-72.) SUBD. 1. Statutory provisions. DOM. REL. LAW, § 110. Definitions; effect of article. § 111. Whose consent necessary. § 112. Requisites of voluntary adoption. 2. Procedure on adoption. 3. Abrogation of adoption. DOM. REL. LAW, § 116. Abrogation of voluntary adoption. Subd. 1. Statutory Provisions. (Fiero, Spec. Pro., 3rd Ed., pp. 62-65.) Dom. Rel. Law, § 110. Definitions; effect of article. Adoption is the legal act whereby an adult takes a minor into the relation of child and thereby acquires the rights and incurs the responsibilities of parent in respect to such minor. Hereafter, in this article, the person adopting is designated the "foster parent." A voluntary adoption is any other than that of an indigent child, or one who is a public charge from an orphan asylum or charitable institution. An adult unmarried person, or an adult husband or wife, or an adult husband and his adult wife together, may adopt a person of the age of twenty-one years and upwards or a minor in pursuance of this article, and a child shall not hereafter be adopted except in pursuance thereof. Proof of the lawful adoption of a person of the age of twenty-one years and upwards or a minor heretofore made may be received in evidence, and any such adoption shall not be abrogated by the enactment of this chapter and shall have the effect of an adoption hereunder. Nothing in this article in regard to an adopted child inheriting from the foster parent applies to any will, devise or trust made or created before June twentyfifth, eighteen hundred and seventy-three, or alters, changes or interferes with such will, devise or trust, and as to any such will, devise or trust, a child adopted before that date is not an heir so as to alter estates or trusts or devises in wills so made or created; and nothing in this article in regard to an adult adopted pursuant hereto inheriting from the foster parent applies to any will, devise or trust, made or created before April twentysecond, nineteen hundred and fifteen, or alters, changes or interferes with such will, devise or trust, and as to any such will, devise or trust, an adult so adopted is not an heir so as to alter estates or trusts or devises in wills so made or created. Amended by L. 1915, ch. 352, and L. 1917, ch. 149. (B., C. & G. Consol. L., 2nd Ed., p. 1937.) Dom. Rel. Law, § 111. Whose consent necessary. Consent to adoption is necessary as follows: 1. Of the minor, if over twelve years of age; 2. Of the foster parent's husband or wife, unless lawfully separated, or unless they jointly adopt such minor; 3. Of the parents or surviving parent of a legitimate child, and of the mother of an illegitimate child; but the consent of a parent who has abandoned the child, or is deprived of civil rights, or divorced because of his or her adultery or cruelty, or adjudged to be insane, or to be an habitual drunkard, or judicially deprived of the custody of the child on account of cruelty or neglect, is unnecessary; excepting, however, that where such parents are divorced because of his or her adultery or cruelty, notice shall be given to both the parents personally or in such manner as may be directed by a judge of a court of competent jurisdiction. Subd. 3, amended by L. 1913, ch. 569. 4. Of a person of full age having lawful custody of the child, if any such person can be found, where the child has no father or mother living, or no father or mother whose consent is necessary under the last subdivision. If such child has no father or mother living, and no person can be found who has the lawful custody of the child, the judge or surrogate shall recite such facts in the order allowing the adoption. 5. Where a minor to be adopted is of the age of eighteen years or upwards, the judge or surrogate may direct, in his discretion, that the consents of the persons referred to in the preceding subdivisions of this section shall be waived, if in his opinion, the moral or temporal interests of such minor will be promoted thereby and such consents cannot, for any reason, be obtained. Where the person to be adopted is of the age of twenty-one years and upwards, the consents of the persons referred to in the preceding subdivisions of this section shall not be required. Subd. 5, added by L. 1915, ch. 352. (B., C. & G. Consol. L., 2nd Ed., P. 1939.) Dom. Rel. Law, § 112. Requisites of voluntary adoption. In adoption the following requirements must be followed. 1. The foster parents or parent, the person to be adopted and all the persons whose consent is necessary under the last section, must appear before the county judge or the surrogate of the county where the foster parent or parents reside, or, if the foster parents or parent do not reside in this state, in the county where the minor resides, and be examined by such judge or surrogate, except as provided by the next subdivision. 2. They must present to such judge or surrogate an instrument containing substantially the consents required by this chapter, an agreement on the part of the foster parents or parent to adopt and treat the minor as his, or her or their own lawful child, and a statement of the age of the person to be adopted, as nearly as the same can be ascertained, which statement shall be taken prima facie as true. If a change in the name of the minor is desired, such instrument may also state the new name by which the minor shall be known. The instrument must be signed by the foster parents or parent and by each person whose consent is necessary to the adoption, and severally acknowledged by said persons before such judge or surrogate; but where a parent or person or institution having the legal custody of the minor resides in some other country, state or county, his or their written acknowledged consent, or the written acknowledged consent of the officers of such institution, certified as conveyances are required to be certified to entitle them to record in a county in this state, is equivalent to his or their appearance and execution of such instrument. In all cases where the consents of the persons mentioned in subdivision one, two, three, and four of section one hundred and eleven have been waived as provided in subdivision five of such section, or where the person to be adopted is of the age of twenty-one years or upwards, notice of such application shall be served upon such persons as the judge or surrogate may direct. Amended by L. 1915, ch. 352, and L. 1916, ch. 453. (B., C. & G. Consol. L., 2nd Ed., p. 1940.) Dom. Rel. Law, § 113. Order. If satisfied that the moral and temporal interests of the person to be adopted will be promoted thereby, the judge or surrogate must make an order allowing and confirming such adoption, reciting the reasons therefor, and directing that the person to be adopted shall henceforth be regarded and treated in all respects as the child of the foster parent or parents. If the judge or surrogate is also satisfied that there is no reasonable objection to the change of name proposed, the order must also direct that the name of the minor be changed to such name as shall have been designated in the instrument mentioned in the last section. Such order, and the instrument and consent, if any, mentioned in the last section must be filed and recorded in the office of the county clerk of such county. The fact of illegitimacy shall in no case appear upon the record. Amended by L. 1915, ch. 352, and L. 1916, ch. 453. (B., C. & G. Consol. L., 2nd Ed., p. 1942.) At common law adoption of children as now understood did not exist, and as now applied its basis is entirely statutory. Matter of Livingston (1912), 151 App. Div. 1, 135 N. Y. Supp. 328; United States Trust Co. v. Hoyt (1912), 150 App. Div. 621, 135 N. Y. Supp. 849; Matter of Ziegler (1913), 82 Misc. 346, 143 N. Y. Supp. 562; Matter of Anonymous (1913), 80 Misc. 10, 141 N. Y. Supp. 700; Matter of Landers (1917), 100 Misc. 635, 166 N. Y. Supp. 1036. In the Roman law the adoption of children was well known, and our statutes relating thereto find their original basis in Roman jurisprudence. Matter of Livingston (1912), 151 App. Div. 1, 135 N. Y. Supp. 328. Subd. 2. Procedure on Adoption. (Fiero, Spec. Pro., 3rd Ed., pp. 65-72.) An adoption proceeding is not judicial but merely involves the approval by the surrogate or the county judge of a contract be tween the parties. Stevens v. Halstead (1917), 181 App. Div. 198, 168 N. Y. Supp. 142. Adoption under the statute cannot take place without the consent of the parents of the minor child, unless such parents have forfeited their natural rights to the custody of the child under circumstances clearly defined by the statute, one of which is an abandonment of the child by the parents. Matter of Livingston (1912), 151 App. Div. 1, 135 N. Y. Supp. 328; Matter of Johnston (1912), 76 Misc. 374, 137 N. Y. Supp. 92. The consent of the natural parent may be dispensed with by the State, and where an adulterous mother has been deprived of parental control her consent to the adoption is not required. Matter of Ziegler (1913), 82 Misc. 346, 143 N. Y. Supp. 562. Agreement and consent to voluntary adoption of an infant held to be in compliance with the statute. Matter of McDevitt (1917), 176 App. Div. 418, 162 N. Y. Supp. 1032, affd., 221 N. Y. 598. An order of adoption bearing the caption and seal of the County Court and signed by the clerk may nevertheless be deemed a judge's order where it recites that the parties "appeared before me, and on examination by me," etc., and is signed by the county judge, without any direction to enter. The fact that such an order was made at a term of the County Court and while the county judge was on the bench does not make it a court order. Rosekrans v. Rosekrans (1914), 163 App. Div. 730, 148 N. Y. Supp. 954. A foster parent must be a resident of the county in which the county judge who makes an order of adoption resides and holds office. Matter of Carpenter (1911), 74 Misc. 127, 133 N. Y. Supp. 735. It seems, that the courts are unauthorized to determine in an adoption proceeding, without actual or constructive notice to the parents, that they have forfeited their natural rights to the custody of their children. Matter of Livingston (1912), 151 App. Div. 1, 135 N. Y. Supp. 328. Since the enactment of L. 1915, ch. 352, the adoption of a person of the age of twenty-one and upward is permitted and no consents save that of the person adopted and that of the foster parent are required. Stevens v. Halstead (1917), 181 App. Div. 198, 168 N. Y. Supp. 142. As the adoption of an adult effects the devolution of property on the death of the foster parent and has the same result as a will, the courts, in determining its validity should apply the same tests as in the case of a testamentary act, and to that end undue influence and lack of testamentary capacity may be shown to nullify the adoption. Stevens v. Halstead (1917), 181 App. Div. 198, 168 N. Y. Supp. 142. For a man to adopt a woman with whom he is living in adultery is against public policy, and to attempt to obtain an approval of such adoption by the surrogate is a fraud upon the court. Stevens v. Halstead (1917), 181 App. Div. 198, 168 N. Y. Supp. 142. Subd. 3. Abrogation of Adoption. Dom. Rel. L., § 116. Abrogation of voluntary adoption. A person adopted may be deprived of the rights of a voluntary adoption by the following proceedings only: The foster parent, the person adopted and the persons whose consent would be necessary to an original adoption, must appear before the county judge or surrogate of the county where the foster parent resides, who shall conduct an examination as for an original adoption. If he is satisfied that the abrogation of the adoption is desired by all parties concerned, and will be for the best interests of the person adopted, the foster parent, the person adopted, if over the age of twelve years, and the persons whose consent would have been necessary to an original adoption shall execute an agreement, whereby the foster parent agrees, or whereby the foster parent and person adopted, if the latter is above the age of twelve years and thereby a necessary party as above required, agree to relinquish the relation of parent and child and all rights acquired by such adoption, and the parents or guardian of the person adopted or the institution having the custody thereof agree to reassume such relation. The judge or surrogate shall indorse, upon such agreement, his consent to the abrogation of the adoption. The agreement and consent shall be filed and recorded in the office of the county clerk of the county where the foster parent resides, and a copy thereof filed and recorded in the office of the county clerk of the county where the parents or guardian reside, or such institution is located, if they reside, or such institution is located, within this state. From the time of the filing and recording thereof, the adoption shall be abrogated, and the person adopted shall reassume its original name and the parents or guardian of the person adopted shall reassume such relation. A person so adopted, however, may be adopted directly from such foster parents by another person or by either of such foster parents in the same manner as from parents, and if such foster parents were the parents of such person so adopted. Amended by L. 1910, ch. 154; L. 1913, ch. 38, and L. 1915, ch. 352. C. & G. Consol. L., 2nd Ed., p. 1948.) (B., |