In this New York Surrogate’s Court adoption proceeding where the two parties never married, petitioner, the father of the Cambodian child who is the subject of this adoption, sought to vacate the court’s prior order permitting respondent, the New york adoptive parent, to “re-adopt” a Cambodian orphan who was residing with her in New York, and to allow him immediate visitation as the father’s child, pursuant to a Cambodian adoption.
The respondent contended that the petitioner had relinquished his adoptive parental rights by a “letter” provided to the authorities in Cambodia, after which she obtained an order of adoption in Cambodia and a subsequent ex parte “re-adoption” order from the Surrogate’s Court in New York. Respondent also contended that the petition was dismissible under the “act of state” doctrine, whereby “the acts of foreign sovereigns taken within their own jurisdictions shall be deemed valid,” because neither of the Cambodian adoptions were completed with a “Giving and Receiving” ceremony.
At trial, petitioner contended that he never legally relinquished his parental rights, and that the respondent’s “re-adoption” of the infant in New York was invalid because he was not served with notice of the proceedings.
The Surrogate’s Court granted the petition, recognized petitioner as the father, vacated its prior order permitting the respondent to adopt the infant, and granted the petitioner immediate visitation by finding that: (1) petitioner’s Cambodian adoption was valid; and (2) he remained the child’s father because his letter relinquishing his rights was invalid under New York law [DRL §115-b]. The Appellate Division affirmed (4-1) on grounds that: (1) because the respondent never completed her Cambodian adoption proceeding, her ex parte “re-adoption” proceeding in New York was a nullity; and (2) even if the respondent’s Cambodian adoption had been completed, New York was not obligated to recognize it pursuant to the “act of state” doctrine, as a foreign adoption involves private interests, in contrast to the act of a foreign state to give effect to its public concerns.
The Court of Appeals affirms, but for different reasons. The Court finds that, although the validity of the petitioner’s Cambodian adoption need not be questioned, the validity of petitioner’s relinquishment of his parental rights must be determined under New York law in accordance with its choice-of-law rules. In this instance, where the involved individuals — petitioner, respondent, and the infant — each resided in New York at the time of the Cambodian proceedings, New York’s interests are paramount, thus making its law controlling. In so holding, the Court determines that, because the petitioner never properly relinquished his parental rights under New York law, he remained the infant’s sole parent. Matter of Doe. Decided 2/16/10.
FAMILY LAW. ADOPTIONS. FOREIGN ORPHAN. “ACT OF STATE” DOCTRINE. APPLICABILITY.