Section 117. Application in behalf of child for the abrogation of an adoption from a charitable institution. 118. Application by foster parent for the abrogation of such an adoption. § 110. Definitions; effect of article. Adoption is the legal act whereby an adult takes a minor into the relation of child and thereby acquires the rights and incurs the responsibilities of parent in respect to such minor. Hereafter, in this article, the person adopting is designated the "foster parent." A voluntary adoption is any other than that of an indigent child, or one who is a public charge from an orphan asylum or charitable institution. An adult unmarried person, or an adult husband or wife, or an adult husband and his adult wife together, may adopt a person of the age of twenty-one years and upwards or a minor in pursuance of this article, and a child shall not hereafter be adopted except in pursuance thereof. Proof of the lawful adoption of a person of the age of twenty-one years and upwards or a minor heretofore made may be received in evidence, and any such adoption shall not be abrogated by the enactment of this chapter and shall have the effect of an adoption hereunder. Nothing in this article in regard to an adopted adult or child inheriting from the foster parent applies to any will, devise or trust made or created before June twenty-fifth, eighteen hundred and seventy-three, or alters, changes or interferes with such will, devise or trust, and as to any such will, devise or trust, an adult or child adopted before that date is not an heir so as to alter estates or trusts or devises in wills so made or created. (As amended by chapter 352 of the Laws of 1915.) § 111. Whose consent necessary. Consent to adoption is necessary as follows: 1. Of the minor, if over twelve years of age; 2. Of the foster parent's husband or wife, unless lawfully separated, or unless they jointly adopt such minor; 3. Of the parents or surviving parent of a legitimate child, and of the mother of an illegitimate child; but the consent of a parent who has abandoned the child, or is deprived of civil rights, or VOL. 3-15 divorced because of his or her adultery or cruelty, or adjudged to be insane, or to be an habitual drunkard, or judicially deprived of the custody of the child on account of cruelty or neglect, is unnecessary; excepting, however, that where such parents are divorced because of his or her adultery or cruelty, notice shall be given to both the parents personally or in such manner as may be directed by a judge of a court of competent jurisdiction. amended by chapter 569, Laws of 1913.) (As Where an order of adoption recited all the jurisdictional facts necessary to its validity and that it appeared to the satisfaction of the county judge "that said minor has been abandoned by its parents," an allegation in the traverse to the return to a writ of habeas corpus that the mother had no notice of the proceeding does not impeach the jurisdiction of the County Court to make the order nor require the court which issues the writ to take proof on that question. Such an allegation is consistent with and not a denial of the finding of the county judge that the mother had abandoned the child, and the statute dispenses with notice in such a case. Supreme Court, December, 1911, Matter of Livingston, 74 Misc. 494; 151 App. Div. 1. A Roman Catholic institution stands in loco parentis as to children surrendered to its custody pursuant to its statutory power to receive deserted children and those surrendered to it and place them by indenture and adoption. Where two foundlings in such an institution were surrendered to a married couple on condition that said children should be brought up in the Catholic faith and the wife dies a member of the Roman Catholic Church, an order for the adoption of the children on the petition of the surviving husband who has no definite religious belief cannot be granted without the consent of the institution. County Court, Kings County, November, 1912. Matter of Korte, 78 Misc. 276. 4. Of a person of full age having lawful custody of the child, if any such person can be found, where the child has no father or mother living, or no father or mother whose consent is necessary under the last subdivision. If such child has no father or mother living, and no person can be found who has the lawful custody of the child, the judge or surrogate shall recite such facts in the order allowing the adoption. 5. Where a minor to be adopted is of the age of eighteen years or upwards, the judge or surrogate may direct, in his discretion, that the consents of the persons referred to in the preceding subdivisions of this section shall be waived, if in his opinion, the moral or temporal interests of such minor will be promoted thereby and such consents cannot, for any reason, be obtained. Where the person to be adopted is of the age of twenty-one years and upwards, the consents of the persons referred to in the preceding subdivisions of this section shall not be required. (Added by chapter 352 of the Laws of 1915.) § 112. Requisites of voluntary adoption. In adoption the following requirements must be followed: 1. The foster parents or parent, the person to be adopted and all the persons whose consent is necessary under the last section, must appear before the county judge or the surrogate of the county where the foster parent or parents reside, and be examined by such judge or surrogate, except as provided by the next subdivision. 2. They must present to such judge or surrogate an instrument containing substantially the consents required by this chapter, an agreement on the part of the foster parent or parents to adopt and treat the minor as his, her or their own lawful child, and a statement of the age of the person to be adopted, as nearly as the same can be ascertained, which statement shall be taken prima facie as true. The instrument must be signed by the foster parent or parents and by each person whose consent is necessary to the adoption, and severally acknowledged by said persons before such judge or surrogate; but where a parent or person or institution having the legal custody of the minor resides in some other country, state or county, his or their written acknowledged consent, or the written acknowledged consent of the officers of such institution, certified as conveyances are required to be certified to entitle them to record in a county in this state, is equivalent to his or their appearance and execution of such instrument. In all cases where the consents of the persons mentioned in subdivisions one, two, three and four of section one hundred and eleven have been waived as provided in subdivision five of such section, or where the person to be adopted is of the age of twenty-one years or upwards, notice of such application shall be served upon such persons as the judge or surrogate may direct. (As amended by chapter 352 of the Laws of 1915.) A foster parent must be a resident of the county in which the county judge who makes an order of adoption resides and holds office. For the purpose of preventing an attempt to nullify an order of adoption by subsequently altering a jurisdictional recital in the papers upon which it was granted the court will order them to be so amended as to restore them to their original condition. County Court, Erie County, November, 1911, Matter of Carpenter, 74 Misc. 127. § 113. Order. If satisfied that the moral and temporal interests of the person to be adopted will be promoted thereby, the judge or surrogate must make an order allowing and confirming such adoption, reciting the reasons therefor, and directing that the person to be adopted shall thenceforth be regarded and treated in all respects as the child of the foster parent or parents. Such order, and the instrument and consent, if any, mentioned in the last section must be filed and recorded in the office of the county clerk of such county. (As amended by chapter 352 of the Laws of 1915.) It is not required by the statute that the judge or surrogate shall witness by his signature the consent of the parties adopting the child; it is sufficient if the order recites that the parties appeared before him and that they signed the necessary consents. Supreme Court, December 30, 1891, People ex rel. Burns v. Bloedel, 42 N. Y. St. Rep. 453; 16 N. Y. Supp. 837. Under the laws relating to the adoption of children the abandonment of a child by a parent is a question of fact to be determined upon competent evidence and upon notice to the parent. The mother of a child nullius filius is not necessarily an unfit person to have its care and custody. In the absence of notice to the mother of adoption proceedings, the question of her abandonment of the child may be raised on her motion to vacate an order of adoption. County Court, Richmond County, July, 1911, Matte of Moore, 72 Misc. 644. § 114. Effect of adoption. Thereafter the parents of the person adopted are relieved from all parental duties toward, and of all responsibility for, and have no rights over such child, or to his property by descent or succession. Where a parent who has procured a divorce, or a surviving parent, having lawful custody of a child, lawfully marries again, or where an adult unmarried person who has become a foster parent and has lawful custody of a child, marries, and such parent or foster parent consents that the person who thus becomes the stepfather or the stepmother of such child may adopt such child, such parent or such foster parent, so consenting, shall not thereby be relieved of any of his or her parental duties toward, or be deprived of any of his or her rights over said child, or to his property by descent or succession. The person adopted takes the name of the foster parent. His rights of inheritance and succession from his natural parents remain unaffected by such adoption. The foster parent or parents and the persons adopted sustain toward each other the legal relation of parent and child, and have all the rights and are subject to all the duties of that relation, including the right of inheritance from each other, except as the same is affected by the provisions in this section in relation to adoption by a stepfather or stepmother, and such right of inheritance extends to the heirs and next of kin of the person adopted, and such heirs and next of kin shall be the same as if he were the legitimate child of the person adopting, but as respects the passing and limitation over of real or personal property dependent under the provisions of any instrument on the foster parent dying without heirs, the person adopted is not deemed the child of the foster parent so as to defeat the rights of remaindermen. (As amended by chapter 352 of the Laws of 1915.) § 115. Adoption from charitable institutions. An orphan asylum or charitable institution, incorporated for the care of orphan, friendless or destitute children may place children for adoption and the adoption of every such child shall, when practicable, be given to persons of the same religious faith as the parents of such child. The adoption shall be effected by the execution of an instrument containing substantially the same provisions as the instrument provided in this article for voluntary adoption, signed and sealed in the corporate name of such corporation by the officer or officers authorized by the directors thereof to sign the corporate name to such instruments and signed by the foster parent or parents and each person whose consent is necessary to the adoption; and may be signed by the child, if over twelve years of age; all of whom shall appear before the county judge or surrogate of the county where such foster parents reside and be examined, except that such officers need not appear; and such judge or surrogate may thereupon make the order of adoption provided by this |