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MOTHER’S ABANDONMENT OF HER PARENTAL OBLIGATIONS IS BEST ADDRESSED IN FATHER’S PARAMOUR’S ADOPTION PROCEEDINGS IN SURROGATE’S COURT; MOTHER’S MOTION TO DISMISS FATHER’S CUSTODY PETITION IN FAMILY COURT SHOULD HAVE BEEN GRANTED (THIRD DEPT).

The Third Department, reversing Family Court, in a full-fledged opinion by Justice Lynch, determined that the issue of mother’s abandonment of her parental obligations was best addressed the father’s paramour’s adoption proceedings in Surrogate’s Court. Father’s custody petition in Family Court should have been dismissed:

The operative point now is that the paramour has initiated adoption proceedings in Surrogate’s Court on the basis of the mother’s abandonment of the children for a period of six months (see Domestic Relations Law § 111 [2] [a]). As Family Court observed, “the Surrogate would have to determine identical issues and allegations as to whether the mother abandoned the children.” In doing so, the Surrogate will be governed by the evidentiary criteria for an abandonment outlined in Domestic Relations Law § 111 (6) (a-d). By comparison, these same statutory criteria do not expressly apply to a custody modification proceeding. It bears further emphasis that “[a]bandonment, as it pertains to adoption, relates to such conduct on the part of a parent as evinces a purposeful ridding of parental obligations and the foregoing of parental rights — a withholding of interest, presence, affection, care and support” … .

Given that the focus of this entire matter is on the issue of adoption, we conclude that the appropriate course is for the Surrogate to determine the question of abandonment. To have this question addressed on parallel tracks in both Family Court and Surrogate’s Court would be both unnecessary and prejudicial to the interests of the parties, particularly given that the paramour is not a party to the Family Court proceeding. As such, the mother’s motion to dismiss the petition should have been granted. Matter of Jason TT. v Linsey UU., 2025 NY Slip Op 04067, Third Dept 7-3-25

Practice Point: Consult this opinion for a discussion of the parallel proceedings in Family Court and Surrogate’s Court where mother’s abandonment of her parental obligations is the central issue. Here the court determined the issue was best handled in father’s paramour’s adoption proceedings in Surrogate’s Court, as opposed to father’s modification of custody proceedings in Family Court.

 

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