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The first was a judicial consent form, which pursuant to statute (Domestic Relations Law § 115-b), and its terms, becomes operative and "irrevocable" only when "executed or acknowledged before a judge or surrogate of the court in which the adoption Toward the end of November 1983, the natural parents executed two separate consent forms to the adoption. They decided to give the child up for adoption and her physical transfer was made on November 11, 1983. are the natural parents of a girl, Sarah, who was born on November 6, 1983, with the condition known as Down's Syndrome. The issues raised on that appeal and cross appeal are brought up for review and have been considered on the appeal by the natural parents from the dispositional order of the Family Court, dated November 7, 1984, which refused to give effect to the notice of revocation of consent filed by the natural parents and, in effect, granted the adoption petition (see, Family Ct.Act § 1112 CPLR 5501). The appeal and cross appeal from the order dated September 24, 1984, must be dismissed because no appeal lies as of right from a nondispositional order of the Family Court (Family Ct.Act § 1112). The natural parents have cross-appealed, as limited by their brief, from so much of the same order as, upon considering their notice of revocation of their consent to the adoption to have been timely given, failed to direct that the child be returned to them forthwith and instead directed that a hearing be held to determine whether her best interests required that she be returned to her natural parents or that the adoption petition be approved. The adoptive parents have appealed, as limited by their brief, from so much of an order of the Family Court, Suffolk County, dated September 24, 1984, as deemed a notice of revocation of an extrajudicial consent to an adoption, signed by the natural parents of the infant in question, to have been timely given. IĪt the outset we must dispose of a procedural problem. Accordingly, the infant must be returned to her natural parents. Since the extrajudicial consent form executed by the natural parents in the case at bar did not so advise them, their consent given on that form cannot stand and must be declared null and void.
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In my view, Domestic Relations Law § 115-b, pursuant to which the form upon which the natural parents gave their extrajudicial consent was promulgated, is unconstitutional on its face, insofar as it fails to require that such an extrajudicial consent form to an adoption advise the natural parents that even if they timely revoke their extrajudicial consent to the adoption, as allowed by statute, the child will not necessarily be returned to them, but may be subject under certain circumstances, to a judicial determination of custody based on a "best interests" test. The question must be answered in the negative.
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The primary question to be resolved on the instant appeals is whether the extrajudicial consent to an adoption, made by the natural parents of the child, was a valid and effective one.
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Abrams, New York City, of counsel), intervenor-respondent pro se in support of the constitutionality of Domestic Relations Law § 115-b.īefore MANGANO, J.P., and BROWN, O'CONNOR, WEINSTEIN and LAWRENCE, JJ. Gen., New York City (Maryellen Weinberg, Robert J. Barnett, New York City, of counsel), for respondents-appellants. Sherman Thompson & Halpin, New York City (John E. Pfirrman, New York City, on the brief), for appellants-respondents. Supreme Court, Appellate Division,įrederick J.
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Robert Abrams, Attorney-General, Intervenor-Respondent. (Anonymous), et al., Respondents-Appellants (Anonymous), et al., Appellants-Respondents