LBD14383-01-6
S. 7221 2
proposed order unless the court IN WHICH THE SURRENDER WAS EXECUTED OR
THE COURT that approved the surrender of the child determined and stated
in its order that the communication with or contact between the adoptive
child, the prospective adoptive parent or parents and a birth parent or
parents and/or biological siblings or half-siblings, as agreed upon and
as set forth in the agreement, would be in the adoptive child's best
interests. Notwithstanding any other provision of law, a copy of the
order entered pursuant to this section incorporating the post-adoption
contact agreement shall be given to all parties who have agreed to the
terms and conditions of such order.
WITH RESPECT TO SURRENDERS EXECUTED ON OR AFTER JANUARY FIRST, TWO
THOUSAND SEVENTEEN, AN AGREEMENT REGARDING COMMUNICATION OR CONTACT
FOLLOWING AN ADOPTION IS ONLY ENFORCEABLE IF APPROVAL OF THE AGREEMENT
HAS BEEN INCORPORATED INTO AN ORDER IN CONJUNCTION WITH A SURRENDER
EXECUTED BEFORE A JUDGE; PROVIDED, HOWEVER, THAT AN AGREEMENT REGARDING
COMMUNICATION OR CONTACT FOLLOWING AN ADOPTION OF A CHILD FROM AN
AUTHORIZED AGENCY MADE IN CONJUNCTION WITH AN EXTRA-JUDICIAL SURRENDER
MAY BE ENFORCEABLE IF THE FOLLOWING ADDITIONAL CONDITIONS HAVE BEEN MET:
(I) THE PARTY OR PARTIES SURRENDERING THE CHILD ATTEST IN A SWORN AFFI-
DAVIT THAT IT WOULD BE AN UNDUE HARDSHIP TO APPEAR IN COURT TO EXECUTE
THE SURRENDER; AND (II) THE PARTY OR PARTIES SURRENDERING THE CHILD WERE
REPRESENTED BY COUNSEL AND SUCH COUNSEL WAS PRESENT AT THE EXECUTION OF
THE SURRENDER AND INFORMED THE SURRENDERING PARTY OR PARTIES OF THE
REQUIREMENTS FOR ENFORCEABILITY OF THE POST-ADOPTION CONTACT AGREEMENT.
S 2. Paragraph (iv) of subdivision (a) of section 262 of the family
court act, as amended by chapter 3 of the laws of 2012, is amended to
read as follows:
(iv) the parent or person legally responsible, foster parent, or other
person having physical or legal custody of the child in any proceeding
under article ten or ten-A of this act or section three hundred fifty-
eight-a, three hundred EIGHTY-THREE-C, THREE HUNDRED eighty-four or
three hundred eighty-four-b of the social services law, and a non-custo-
dial parent or grandparent served with notice pursuant to paragraph (e)
of subdivision two of section three hundred eighty-four-a of the social
services law;
S 3. Paragraph (b) of subdivision 2 of section 383-c of the social
services law, as amended by chapter 41 of the laws of 2010, is amended
to read as follows:
(b) (I) If a surrender instrument designates a particular person or
persons who will adopt a child, such person or persons, the child's
birth parent or parents, the authorized agency having care and custody
of the child and the child's attorney[,] may enter into a written agree-
ment providing for communication or contact between the child and the
child's parent or parents on such terms and conditions as may be agreed
to by the parties. SUCH TERMS AND CONDITIONS SHALL BE SET FORTH IN WRIT-
ING AND CONSENTED TO IN WRITING BY THE PARTIES TO THE AGREEMENT, INCLUD-
ING THE ATTORNEY REPRESENTING THE CHILD.
(II) If a surrender instrument does not designate a particular person
or persons who will adopt the child, then the child's birth parent or
parents, the authorized agency having care and custody of the child and
the child's attorney may enter into a written agreement providing for
communication or contact, on such terms and conditions as may be agreed
to by the parties. SUCH TERMS AND CONDITIONS SHALL BE SET FORTH IN WRIT-
ING AND CONSENTED TO IN WRITING BY THE PARTIES TO THE AGREEMENT, INCLUD-
ING THE ATTORNEY REPRESENTING THE CHILD.
S. 7221 3
(III) Such agreement also may provide terms and conditions for commu-
nication with or contact between the child and the child's biological
siblings or half-siblings, if any. If any such sibling or half-sibling
is fourteen years of age or older, such terms and conditions shall not
be enforceable unless such sibling or half-sibling consents to the
agreement in writing.
(IV) If the court before which the surrender instrument is presented
for approval determines that the agreement concerning communication and
contact is in the child's best interests, the court shall approve the
agreement AND INCORPORATE SUCH APPROVAL INTO A WRITTEN COURT ORDER, A
COPY OF WHICH SHALL BE GIVEN TO THE PARTIES. If the court does not
approve the agreement, the court may nonetheless approve the surrender;
provided, however, that the birth parent or parents executing the
surrender instrument shall be INFORMED THAT THE AGREEMENT IS NOT
ENFORCEABLE IN A COURT OF LAW AND SHALL BE given the opportunity at that
time to withdraw such instrument.
(V) Enforcement of any agreement prior to the adoption of the child
shall be in accordance with subdivision (b) of section one thousand
fifty-five-a of the family court act. Subsequent to the adoption of the
child, enforcement of any agreement shall be in accordance with section
one hundred twelve-b of the domestic relations law.
S 4. Subdivision 4 of section 383-c of the social services law is
amended by adding a new paragraph (g) to read as follows:
(G) A SURRENDER OF A CHILD, EXECUTED ON OR AFTER JANUARY FIRST, TWO
THOUSAND SEVENTEEN, WHICH IS MADE IN CONJUNCTION WITH AN AGREEMENT
CONTAINING CONDITIONS, INCLUDING, BUT NOT LIMITED TO, IDENTIFYING THE
PROSPECTIVE ADOPTIVE PARENT OR PARENTS OR PRESCRIBING COMMUNICATION OR
CONTACT WITH THE CHILD AND THE ADOPTIVE PARENT OR PARENTS AND/OR BETWEEN
THE CHILD AND HIS OR HER BIOLOGICAL SIBLINGS OR HALF-SIBLINGS FOLLOWING
THE SURRENDER AND ADOPTION OF THE CHILD SHALL BE EXECUTED BEFORE A
JUDGE; PROVIDED, HOWEVER, THAT SUCH AN AGREEMENT MADE IN CONJUNCTION
WITH AN EXTRA-JUDICIAL SURRENDER EXECUTED AFTER SUCH DATE MAY BE
ENFORCEABLE IF THE FOLLOWING CONDITIONS HAVE BEEN MET IN ADDITION TO
THOSE DELINEATED IN PARAGRAPH (B) OF THIS SUBDIVISION: (I) THE PARTY OR
PARTIES SURRENDERING THE CHILD ATTEST IN A SWORN AFFIDAVIT THAT IT WOULD
BE AN UNDUE HARDSHIP TO APPEAR IN COURT TO EXECUTE THE SURRENDER; AND
(II) THE PARTY OR PARTIES SURRENDERING THE CHILD WERE REPRESENTED BY
COUNSEL AND SUCH COUNSEL WAS PRESENT AT THE EXECUTION OF THE SURRENDER
AND INFORMED THE SURRENDERING PARTY OR PARTIES OF THE REQUIREMENTS FOR
ENFORCEABILITY OF THE AGREEMENT.
S 5. Subparagraphs (ii) and (iii) of paragraph (b) of subdivision 5 of
section 383-c of the social services law, subparagraph (ii) as amended
by chapter 601 of the laws of 1994 and subparagraph (iii) as added by
chapter 479 of the laws of 1990, are amended to read as follows:
(ii) that the parent is giving up all rights to have custody, visit
with, speak with, write to or learn about the child, forever, unless the
parties have agreed to different terms pursuant to subdivision two of
this section[,] and unless such terms are written in the surrender OR
ARE WRITTEN IN AN AGREEMENT APPROVED BY THE COURT IN AN ORDER IN ACCORD-
ANCE WITH SUCH SUBDIVISION, or, if the parent registers with the
adoption information register, as specified in section forty-one hundred
thirty-eight-d of the public health law, that the parent may be
contacted at anytime after the child reaches the age of eighteen years,
but only if both the parent and the adult child so choose;
(iii) that the child will be adopted without the parent's consent and
without further notice to the parent, and will be adopted by any person
S. 7221 4
that the agency chooses, unless the surrender paper OR AN AGREEMENT
APPROVED BY THE COURT IN AN ORDER IN ACCORDANCE WITH SUBDIVISION TWO OF
THIS SECTION contains the name of the person or persons who will be
adopting the child; and
S 6. Paragraph (b) of subdivision 2 of section 384 of the social
services law, as amended by chapter 41 of the laws of 2010, is amended
to read as follows:
(b) (I) If a surrender instrument designates a particular person or
persons who will adopt a child, such person or persons, the child's
birth parent or parents, the authorized agency having care and custody
of the child and the child's attorney[,] may enter into a written agree-
ment providing for communication or contact between the child and the
child's parent or parents on such terms and conditions as may be agreed
to by the parties. SUCH TERMS AND CONDITIONS SHALL BE SET FORTH IN WRIT-
ING AND CONSENTED TO IN WRITING BY THE PARTIES TO THE AGREEMENT, INCLUD-
ING THE ATTORNEY REPRESENTING THE CHILD.
(II) If a surrender instrument does not designate a particular person
or persons who will adopt the child, then the child's birth parent or
parents, the authorized agency having care and custody of the child and
the child's attorney may enter into a written agreement providing for
communication or contact, on such terms and conditions as may be agreed
to by the parties. SUCH TERMS AND CONDITIONS SHALL BE SET FORTH IN WRIT-
ING AND CONSENTED TO IN WRITING BY THE PARTIES TO THE AGREEMENT, INCLUD-
ING THE ATTORNEY REPRESENTING THE CHILD.
(III) Such agreement also may provide terms and conditions for commu-
nication with or contact between the child and the child's biological
sibling or half-sibling, if any. If THE CHILD OR any such sibling or
half-sibling is fourteen years of age or older, [such terms and condi-
tions] AN AGREEMENT FOR CONTACT OR COMMUNICATION BETWEEN THE CHILD AND
HIS OR HER SIBLINGS OR HALF-SIBLINGS shall not be enforceable unless
such CHILD, sibling or half-sibling consents to the agreement in writ-
ing.
(IV) If the court before which the surrender instrument is presented
for EXECUTION OR approval, determines that the agreement [concerning
communication and contact] is in the child's best interests, the court
shall approve the agreement AND INCORPORATE SUCH APPROVAL INTO A WRITTEN
COURT ORDER, A COPY OF WHICH SHALL BE GIVEN TO THE PARTIES. If the court
does not approve the agreement, the court may nonetheless approve the
surrender; provided, however, that the birth parent or parents executing
the surrender instrument shall be INFORMED THAT THE AGREEMENT IS NOT
ENFORCEABLE IN A COURT OF LAW AND SHALL BE given the opportunity at that
time to withdraw such instrument. Enforcement of any agreement prior to
the adoption of the child shall be in accordance with subdivision (b) of
section one thousand fifty-five-a of the family court act. Subsequent to
the adoption of the child, enforcement of any agreement shall be in
accordance with section one hundred twelve-b of the domestic relations
law.
S 7. Subdivision 3 of section 384 of the social services law, as
amended by chapter 479 of the laws of 1990, the opening paragraph as
amended by chapter 185 of the laws of 2006, the fifth undesignated para-
graph as added by chapter 680 of the laws of 2007, the sixth undesig-
nated paragraph and the closing paragraph as added by chapter 76 of the
laws of 2002, and subparagraphs (i) and (ii) of the sixth undesignated
paragraph as amended by chapter 41 of the laws of 2010, is amended to
read as follows:
S. 7221 5
3. Instrument AND INTERVENTION. (A) The instrument herein provided
shall be executed and acknowledged [(a)] (I) before any judge or surro-
gate in this state having jurisdiction over adoption proceedings, except
that if the child is being surrendered as a result of, or in connection
with, a proceeding before the family court pursuant to article ten or
ten-A of the family court act, the instrument shall be executed and
acknowledged in the family court that exercised jurisdiction over such
proceeding and shall be assigned, wherever practicable, to the judge who
last presided over such proceeding; or [(b)] (II) in the presence of one
or more witnesses and acknowledged by such witness or witnesses, in the
latter case before a notary public or other officer authorized to take
proof of deeds, and shall be recorded in the office of the county clerk
in the county where such instrument is executed, or where the principal
office of such authorized agency is located, in a book which such county
clerk shall provide and shall keep under seal.
(B) A SURRENDER OF A CHILD, EXECUTED ON OR AFTER JANUARY FIRST, TWO
THOUSAND SEVENTEEN, WHICH IS MADE IN CONJUNCTION WITH AN AGREEMENT
CONTAINING CONDITIONS, INCLUDING, BUT NOT LIMITED TO, IDENTIFYING THE
PROSPECTIVE ADOPTIVE PARENT OR PARENTS OR PRESCRIBING COMMUNICATION OR
CONTACT WITH THE CHILD AND THE ADOPTIVE PARENT OR PARENTS AND/OR BETWEEN
THE CHILD AND HIS OR HER BIOLOGICAL SIBLINGS OR HALF-SIBLINGS FOLLOWING
THE SURRENDER AND ADOPTION OF THE CHILD SHALL BE EXECUTED BEFORE A
JUDGE; PROVIDED, HOWEVER, THAT SUCH AN AGREEMENT MADE IN CONJUNCTION
WITH AN EXTRA-JUDICIAL SURRENDER EXECUTED AFTER SUCH DATE MAY BE
ENFORCEABLE IF THE FOLLOWING CONDITIONS HAVE BEEN MET IN ADDITION TO
THOSE DELINEATED IN PARAGRAPH (B) OF SUBDIVISION TWO OF THIS SECTION:
(I) THE PARTY OR PARTIES SURRENDERING THE CHILD ATTEST IN A SWORN
AFFIDAVIT THAT IT WOULD BE AN UNDUE HARDSHIP TO APPEAR IN COURT TO
EXECUTE THE SURRENDER; AND
(II) THE PARTY OR PARTIES SURRENDERING THE CHILD WERE REPRESENTED BY
COUNSEL AND SUCH COUNSEL WAS PRESENT AT THE EXECUTION OF THE SURRENDER
AND INFORMED THE SURRENDERING PARTY OR PARTIES OF THE REQUIREMENTS FOR
ENFORCEABILITY OF THE AGREEMENT.
(C) Such record shall be subject to inspection and examination only as
provided in subdivisions three and four of section three hundred seven-
ty-two of this title.
(D) Notwithstanding any other provision of law, if the parent surren-
dering the child for adoption is in foster care the instrument shall be
executed before a judge of the family court.
(E) Whenever the term surrender or surrender instrument is used in any
law relating to the adoption of children who are not in foster care, it
shall mean and refer exclusively to the instrument [hereinabove]
described IN THIS SUBDIVISION for the commitment of the guardianship of
the person and the custody of a child to an authorized agency by his OR
HER parents, parent or guardian; and in no case shall it be deemed to
apply to any instrument purporting to commit the guardianship of the
person and the custody of a child to any person other than an authorized
agency, nor shall such term or the provisions of this section be deemed
to apply to any instrument transferring the care and custody of a child
to an authorized agency pursuant to section three hundred eighty-four-a
of this [chapter] TITLE.
(F)(I) Any person or persons having custody of a child for the purpose
of adoption through an authorized agency shall be permitted as a matter
of right, as an interested party, to intervene in any proceeding
commenced to set aside a surrender purporting to commit a guardianship
of the person or custody of a child executed under the provisions of
S. 7221 6
this section. Such intervention may be made anonymously or in the true
name of said person.
(II) Any person or persons having custody for more than twelve months
through an authorized agency for the purpose of foster care shall be
permitted as a matter of right, as an interested party, to intervene in
any proceeding commenced to set aside a surrender purporting to commit
the guardianship of the person and custody of a child executed under the
provisions of this section. Such intervention may be made anonymously or
in the true name of said person or persons having custody of the child
for the purpose of foster care.
(G) A copy of such surrender shall be given to [such] THE surrendering
parent upon the execution thereof. The surrender shall include the
following statement: "I, (name of surrendering parent), this ___ day of
__________, _____, have received a copy of this surrender. (Signature of
surrendering parent)". Such surrendering parent shall so acknowledge the
delivery and the date of the delivery in writing on the surrender.
(H) Where the parties have agreed that the surrender shall be subject
to conditions pursuant to subdivision two of this section, the instru-
ment shall further state in plain language that:
(i) the authorized agency shall notify the parent, unless such notice
is expressly waived by a statement written by the parent and appended to
or included in such instrument, the attorney for the child and the court
that approved the surrender within twenty days of any substantial fail-
ure of a material condition of the surrender prior to the finalization
of the adoption of the child; and
(ii) except for good cause shown, the authorized agency shall file a
petition on notice to the parent unless notice is expressly waived by a
statement written by the parent and appended to or included in such
instrument and the child's attorney in accordance with section one thou-
sand fifty-five-a of the family court act within thirty days of such
failure, in order for the court to review such failure and, where neces-
sary, to hold a hearing; provided, however, that, in the absence of such
filing, the parent and/or attorney for the child may file such a peti-
tion at any time up to sixty days after notification of such failure.
Such petition filed by a parent or attorney for the child must be filed
prior to the child's adoption; and
(iii) the parent is obligated to provide the authorized agency with a
designated mailing address, as well as any subsequent changes in such
address, at which the parent may receive notices regarding any substan-
tial failure of a material condition, unless such notification is
expressly waived by a statement written by the parent and appended to or
included in such instrument.
Nothing in this paragraph shall limit the notice on the instrument
with respect to a failure to comply with a material condition of a
surrender subsequent to the finalization of the adoption of the child.
S 8. Subdivision 4 of section 384 of the social services law, as
amended by chapter 185 of the laws of 2006, is amended to read as
follows:
4. Upon petition by an authorized agency, a judge of the family court,
or a surrogate, may approve such surrender, on such notice to such
persons as the surrogate or judge may in his or her discretion
prescribe. If the child is being surrendered as a result of, or in
connection with, a proceeding before the family court pursuant to arti-
cle ten or ten-A of the family court act, the petition shall be filed in
the family court that exercised jurisdiction over such proceeding and
shall be assigned, wherever practicable, to the judge who last presided
S. 7221 7
over such proceeding. The petition shall set forth the names and last
known addresses of all persons required to be given notice of the
proceeding, pursuant to section three hundred eighty-four-c of this
title, and there shall be shown by the petition or by affidavit or other
proof satisfactory to the court that there are no persons other than
those set forth in the petition who are entitled to notice pursuant to
such section. AT THE TIME THAT A PARENT APPEARS BEFORE A JUDGE OR SURRO-
GATE TO EXECUTE AND ACKNOWLEDGE A SURRENDER OR FOR THE JUDGE TO APPROVE
A SURRENDER, THE JUDGE OR SURROGATE SHALL INFORM SUCH PARENT OF THE
RIGHT TO BE REPRESENTED BY LEGAL COUNSEL OF THE PARENT'S OWN CHOOSING
AND OF THE RIGHT TO OBTAIN SUPPORTIVE COUNSELING AND OF ANY RIGHT TO
HAVE COUNSEL ASSIGNED PURSUANT TO SECTION TWO HUNDRED SIXTY-TWO OF THE
FAMILY COURT ACT, SECTION FOUR HUNDRED SEVEN OF THE SURROGATE'S COURT
PROCEDURE ACT, OR SECTION THIRTY-FIVE OF THE JUDICIARY LAW. No person
who has received such notice and been afforded an opportunity to be
heard may challenge the validity of a surrender approved pursuant to
this subdivision in any other proceeding. However, this subdivision
shall not be deemed to require approval of a surrender by a surrogate or
judge for such surrender to be valid, PROVIDED, HOWEVER, THAT AN AGREE-
MENT MADE IN CONJUNCTION WITH A SURRENDER THAT CONTAINS CONDITIONS,
INCLUDING, BUT NOT LIMITED TO, IDENTIFYING THE PROSPECTIVE ADOPTIVE
PARENT OR PARENTS OR PRESCRIBING COMMUNICATION OR CONTACT WITH THE CHILD
AND THE ADOPTIVE PARENT OR PARENTS AND/OR BETWEEN THE CHILD AND HIS OR
HER BIOLOGICAL SIBLINGS OR HALF-SIBLINGS FOLLOWING THE SURRENDER AND
ADOPTION OF THE CHILD SHALL BE ENFORCEABLE IN A COURT OF LAW ONLY IF THE
REQUIREMENTS OF SUBDIVISIONS TWO AND THREE OF THIS SECTION HAVE BEEN
MET.
S 9. This act shall take effect on the first of January next succeed-
ing the date on which it shall have become a law.