Man Who Under Cambodian Law Adopted Baby Brought to U.S. Was Entitled to Notice of N.Y. Adoption Proceeding Brought by His Former Companion, W; Adoption by W Therefore Vacated

Both M (for man) and W (for woman), “romantically involved” at the time, brought the then 10-month-old baby (John Doe – “JD”) to New York for medical treatment in 2003. He has lived since then with W in New York, M meanwhile securing an adoption of him in 2004 under Cambodian law. Although “[b]oth parties love the child, and have participated in caring for him”, there was a falling out between them in late 2005 about how to raise JD, and hostility between them since. W secured a New York adoption of JD in a surrogate’s court proceeding in which M – legally JD’s father based on the Cambodian adoption – was not notified. Learning of this later, M brought this proceeding before the surrogate to vacate the adoption. The vacatur is granted. In re John Doe, …. N.Y.3d …., …. N.Y.S.2d …., 2010 NY Slip Op 01345 (Feb. 16, 2010).

M and W each claim to be the sole parent now. The case became “complicated”, but the Court, building its decision on the facts (of the many) that are “material to the legal issues” and either conceded or not contradicted, disposes seriatim of the legal issues, of which it lists five.

The first is whether M “validly adopted” JD under Cambodian law. In the face of conflicting experts, the surrogate found that M did, and the Court sees no basis for disturbing the finding.

The second was whether New York should grant comity to the Cambodian adoption by M. The Court really finds no need to answer that because a potential conflict – and hence a need for comity – would arise only if New York deemed itself required to apply Cambodian law in deciding who could properly adopt JD in 2004. In an opinion by Judge Smith, the Court sees no such obligation under New York law because in 2004 it was “highly unlikely” that JD would ever return to Cambodia. New York’s interest even at that point was “not less than Cambodia’s” and New York law could therefore be applied without deference to Cambodia’s.

The third issue concerned a letter M wrote in 2005 stating that he wanted to consent to W’s adoption. The Court cites two ways in which, by statute, M might do that in these circumstances, and the applicable requirements of neither were met by the letter. Again the Court notes that the issue is between New York parents, and that New York law is hence the relevant source of governance. It writes that

[w]hen New York parents have acquired, by virtue of a foreign country adoption, parental rights that are recognized in New York, those rights can no longer depend upon the vagaries of a foreign country’s law. The rule [W] seeks would create unacceptable uncertainty for every New York parent raising a child … adopted in a foreign country.

Here, incidentally, the Court cites its 1963 conflict of laws decision in Babcock v. Jackson, 12 N.Y.2d 473, 240 N.Y.S.2d 743, which abandoned prior arbitrary choice of law notions and held that the governing law in conflicts cases must be

the jurisdiction which, because of its relationship or contact with the occurrence or the parties, has the greatest concern with the specific issue raised in the litigation.

Babcock could also have been cited as dispositive of the second issue noted above.
Issue number four concerned the Act of State doctrine, of which the Court makes short shrift and we with gratitude make even shorter shrift and turn to number five, “the best interests of the child”.

Those interests, “important though they are, do not automatically validate an otherwise illegal adoption”, an adoption the Court deems it necessary to vacate in this case because it “was gravely flawed as a matter of law”, for, among other things, want of notice to M, the legal father, and W’s failure to disclose an alcohol problem.

The Court is impressed enough with M’s assurances that “his own first concern is [JD’s] best interests, and that he has no intention of removing the child from the only home he has ever known”. Relying on that, it finds the issue of just what powers M would now have “academic”. It adds that “we hope it will remain so”, perhaps a tacit admonition that if M’s conduct violates his assurances, the courts will be on standby to look into things again, and, we assume, with “the best interests of the child” now made the yardstick.