The Second Department, reversing Family Court, determined father’s consent to adoption was not required. Although father, who never married mother, was incarcerated for much of the time since the child was born, and there was an order of protection prohibiting him from seeing the child, the Second Department held father could have, but did not, make an effort to support the child and have the order of protection lifted during the periods he was not incarcerated:
The father bore the burden of establishing that he was a consent father pursuant to Domestic Relations Law § 111(1)(d) … . The father provided no support for the child, and no evidence was submitted that he lacked the means to do so … . Further, the fact that the father was incarcerated, or that there was no order directing child support, did not absolve him of the obligation to support the child … . Moreover, there were substantial periods of time when the father was out of prison and, therefore, could have petitioned for contact with the child. Although an order of protection in favor of the child was in effect until November 2018, that order specifically provided that it could be modified by a subsequent order issued by the Family Court or the Supreme Court in a parental access proceeding. Further, there was a substantial period in 2019 when the father was out of prison, but the father failed to seek contact with the child through the Family Court….Matter of Statini v Reed, 2022 NY Slip Op 04304, Second Dept 7-6-22
Practice Point: In the context of whether father’s consent to adoption of his child (born out-of-wedlock) is required, the fact that father was incarcerated for much of the time since the child was born did not relieve him of his obligation to support the child. Father made no effort to gain parental access to the child, or to support the child, during the periods he was not in prison. Father’s consent to adoption of the child was not required.