§ 384. Guardianship and custody of children not in foster care. 1.
Method. The guardianship of the person and the custody of a child who is
not in foster care under the age of eighteen years may be committed to
an authorized agency by a written instrument which shall be known as a
surrender, and signed:

(a) if both parents shall then be living, by the parents of such
child, or by the surviving parent, if either parent of such child be
dead;

(b) if either one of such parents shall have for a period of six
months then next preceding abandoned such child, by the other of such
parents;

(c) if such child is born out of wedlock, by the mother of such child,
and by the father of such child, if such father's consent would be
required for the child's adoption, pursuant to section one hundred
eleven of the domestic relations law;

(d) if both parents of such child are dead, or if such child is born
out of wedlock and the mother of such child is dead by the guardian of
the person of such child lawfully appointed, with the approval of the
court or officer which appointed such guardian to be entered of record.

2. Terms. (a) Such guardianship shall be in accordance with the
provisions of this article and the instrument shall be upon such terms
and subject to such conditions as may be agreed upon by the parties
thereto. The instrument shall recite that the authorized agency is
thereby authorized and empowered to consent to the adoption of such
child in the place and stead of the person signing the instrument, and
may recite that the person signing the instrument waives any notice of
such adoption; provided, however, that an authorized agency shall not
accept a surrender instrument conditioned upon adoption by a particular
person, unless the agency has fully investigated and certified or
approved such person as a qualified adoptive parent. Any surrender
instrument subject to the provisions of this section shall include an
adoption information registry birth parent registration consent form,
stating whether or not such biological parent or parents whose consent
is subject to the provisions of this section, consents to the receipt of
identifying information by the child to be adopted, upon registration
with the adoption information registry established by section forty-one
hundred thirty-eight-c of the public health law and upon the adoptee
reaching the age of eighteen. If such consent is made, it shall be
revocable by either of the biological parents at any time. The
revocation of the consent by one of the parents shall revoke the consent
of both parents. The failure of a biological parent to complete the
consent form shall have no effect on the finality of the consent to
adoption. A copy of the form required by this subdivision, shall be
forwarded to the state adoption information registry for inclusion in
the records maintained by such registry. Any fees authorized to be
charged by the state adoption registry for filing documentation with
such registry shall be waived for the form required by this subdivision.
No such agency shall draw or receive money from public funds for the
support of any such child except upon the written order or permit of the
local social services official of the county or city sought to be
charged with the support of such child.

(b) 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
agreement 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.

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 agreement also may provide terms and conditions
for communication with or contact between the child and the child's
biological sibling or half-sibling, 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. 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. 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 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.

3. Instrument. The instrument herein provided shall be executed and
acknowledged (a) before any judge or surrogate 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) 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. Such record shall be subject to
inspection and examination only as provided in subdivisions three and
four of section three hundred seventy-two of this title. Notwithstanding
any other provision of law, if the parent surrendering the child for
adoption is in foster care the instrument shall be executed before a
judge of the family court.

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
for the commitment of the guardianship of the person and the custody of
a child to an authorized agency by his 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.

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 this
section. Such intervention may be made anonymously or in the true name
of said person.

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.

A copy of such surrender shall be given to such 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.

Where the parties have agreed that the surrender shall be subject to
conditions pursuant to subdivision two of this section, the instrument
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
failure 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
thousand 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
necessary, 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
petition 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
substantial 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.

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
article 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 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. 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.

5. If a duly executed and acknowledged adoption surrender shall so
recite, no action or proceeding may be maintained by the surrendering
parent or guardian for the custody of the surrendered child or to revoke
or annul such surrender where the child has been placed in the home of
adoptive parents and more than thirty days have elapsed since the
execution of the surrender or where the purpose of such action or
proceeding is to return the child to or vest the child's custody in any
person other than the parent or guardian who originally executed such
surrender. This subdivision shall not bar actions or proceedings brought
on the ground of fraud, duress or coercion in the execution or
inducement of a surrender.

For the purposes of this subdivision, no child shall be deemed to have
been placed in the home of adoptive parents unless the fact of such
placement, the date thereof, the date of the agreement pertaining
thereto and the names and addresses of the adoptive parents shall have
been recorded in a bound volume maintained by the agency for the purpose
of recording such information in chronological order.

Where the parties have agreed that the surrender shall be subject to
conditions pursuant to subdivision two of this section and where there
has been a substantial failure of a material condition prior to the
finalization of the adoption of the child, the agency shall notify the
parent thereof, unless such notice is expressly waived by a statement
written by the parent and appended to or included in such instrument,
and shall notify the court and the law guardian for the child within
twenty days of such failure. In any such case, 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 law guardian in accordance with section one
thousand fifty-five-a of the family court act within thirty days of such
failure, except for good cause shown, in order for the court to review
such failure and, where necessary, to hold a hearing; provided, however,
that, in the absence of such a filing, the parent and/or law guardian
for the child may file such a petition at any time up to sixty days
after notification of the failure. Such a petition filed by a parent or
law guardian must be filed prior to the adoption. Nothing in this
paragraph shall limit the rights and remedies available to the parties
and the law guardian pursuant to section one hundred twelve-b of the
domestic relations law with respect to a failure to comply with a
material condition of a surrender subsequent to the finalization of the
adoption of a child.

6. In an action or proceeding to determine the custody of a child not
in foster care surrendered for adoption and placed in an adoptive home
or to revoke or annul a surrender instrument in the case of such child
placed in an adoptive home, the parent or parents who surrendered such
child shall have no right to the custody of such child superior to that
of the adoptive parents, notwithstanding that the parent or parents who
surrendered the child are fit, competent and able to duly maintain,
support and educate the child. The custody of such child shall be
awarded solely on the basis of the best interests of the child, and
there shall be no presumption that such interests will be promoted by
any particular custodial disposition.

7. Upon acceptance of a judicial surrender or approval of an
extra-judicial surrender pursuant to this section, the court shall
schedule an initial freed child permanency hearing pursuant to section
one thousand eighty-nine of the family court act.

8. Upon execution of a surrender instrument, the parent executing the
surrender shall provide information to the extent known regarding the
other parent, any person to whom the surrendering parent had been
married at the time of the conception or birth of the child and any
other person listed in subdivision two of section three hundred
eighty-four-c of this title. Such information shall include, but not be
limited to, such parent's or person's name, last-known address, social
security number, employer's address and any other identifying
information. Any information provided pursuant to this subdivision shall
be recorded in the uniform case record maintained pursuant to section
four hundred nine-f of this article; provided, however, that the failure
to provide such information shall not invalidate the surrender.

9. Acceptance of a judicial surrender or approval of an extra-judicial
surrender pursuant to this section shall not be construed to terminate
any rights of the child to contact his or her siblings. For purposes of
this section, "siblings" shall include half-siblings and those who would
be deemed siblings or half siblings but for the surrender, termination
of parental rights or death of a parent.