At the time of the subject child’s birth, the parents, who were never married, were not living together. In an order dated January 18, 2013, which was issued while the father was incarcerated, the Family Court awarded the mother sole custody, denied the father all contact with the child, and authorized the father to seek modification of the order upon release. The father claimed he was released from prison in February 2017, re-incarcerated in January 2018, released again in January 2019, and arrested on a new charge in September 2019. In July 2020, while incarcerated, he filed a petition for parental access. Subsequently, the mother and her husband filed a petition to adopt the child, alleging that the father’s consent to adoption was not required, and the father petitioned to modify the January 2013 order so as to award him parental access.
Following a hearing, the Family Court found that the father had not abandoned the child, determined that the father’s consent to the adoption was required, and, in effect, dismissed the adoption petition. The mother and her husband appealed.
The father here bore the burden of establishing that he was a “consent father” under Domestic Relations Law § 111(1)(d) (see Matter of Gianna [Perry W.K.-Andrew R.], 193 AD3d 858, 859). The father did not provide support for the child and failed to submit evidence that he lacked the means to do so (see Matter of D. [Juan P.—Darren M.], 164 AD3d 1237, 1237). Further, the fact that he was incarcerated, or that there was no order directing child support, does not relieve him of his duty to support the child (see Matter of Floyd J.B. [Floyd B.], 172 AD3d 1200). Also, there were substantial periods of time when the father was released from prison and could have petitioned for contact with the child but failed to do so. Although an order of protection favoring the child was effective until November 2018, that order specifically stated that it could be modified. There was a substantial period in 2019 when the father was not incarcerated, but he failed to seek contact with the child with the appropriate Family Court proceeding.
Therefore, the father failed to establish that his consent to the adoption was required (see Matter of Angelina J.W.[Antonio R.], 202 AD3d 1091, 1092-1093; Matter of Prinzivalli v. Kaelin, 200 AD3d 781, 782; Matter of Vanessa Ann G.-L., 50 AD3d at 1038). The adoption petition is reinstated.