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ALTHOUGH FATHER, WHO HAD BEEN IN THE MILITARY, HAD NOT PROCURED HOUSING FOR HIMSELF AND HIS UNDER-SIX-MONTH-OLD SON, HE DEMONSTRATED HE WAS WILLING AND ABLE TO CARE FOR THE CHILD; THEREFORE HIS CONSENT TO ADOPTION BY PETITIONERS-RESPONDENTS WAS REQUIRED AND CUSTODY WAS PROPERLY AWARDED TO HIM; THE DISSENT ARGUED FATHER’S FAILURE TO PROCURE HOUSING RENDERED HIM UNABLE TO CARE FOR THE CHILD (FOURTH DEPT).

The Fourth Department, over a dissent, determined father demonstrated he is willing and able to enter a full relationship with his under-six-year-old child and, therefore, his consent to adoption by the petitioners-respondents was required and he was properly awarded custody of the child. The dissent argued father, who was in the military, made no attempt to procure housing for himself and the child and, therefore, did not demonstrate he was able to care for the child:

We … disagree with our dissenting colleague and conclude that the father established his ability to assume custody of the child. Contrary to the position of the dissent and petitioners, custody and housing are separate and distinct concepts. A parent who lacks housing for a child is not legally precluded from obtaining custody. Certainly, active military members should not lose custody of a child due to their service to our country. Many parents enlist the aid of family members to help them provide housing, including single parents who serve in the military. That temporary inability to provide housing should not preclude them from asserting their custodial rights to the children where, as here, they have established their intent to embrace their parental responsibility. Matter of William, 2022 NY Slip Op 03831, Fourth Dept 6-9-22

Practice Point: The Fourth Department noted that custody and housing are separate and distinct concepts. Although father, who had been in the military, had not procured housing for himself and the child, he demonstrated he was willing and able to care for the child. Therefore his consent to adoption by the petitioners-respondents was required and custody was properly awarded to him.

 

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