This adoption proceeding was commenced on January 24, 2023, by petitioner, the husband of the child's biological mother, seeking to adopt the subject child, born in August 2010. The petition alleges that respondent biological father's consent is not required on the ground of abandonment pursuant to Domestic Relations Law § 111(2)(a). Respondent now moves for summary judgment dismissing the adoption petition on the ground that, as a matter of law, petitioner cannot establish abandonment under Domestic Relations Law § 111(2)(a).

Summary judgment is available in adoption proceedings where no triable issue of material fact exists. See Matter of Nathon O., 55 AD3d 995, 996 (3rd Dept. 2008). The movant bears the initial burden of establishing entitlement to judgment as a matter of law, after which the burden shifts to the opposing party to raise a triable issue of fact through evidentiary proof in admissible form. See Zuckerman v City of New York, 49 NY2d 557, 562—563 (1980).

Under Domestic Relations Law § 111(2)(a), the consent of a parent is not required where that parent "evinces an intent to forego his or her parental or custodial rights and obligations as manifested by his or her failure for a period of six months to visit the child and communicate with the child or person having legal custody of the child, although able to do so." The statute is conjunctive. To establish abandonment, a petitioner must prove, by clear and convincing evidence, both a failure to visit and a failure to communicate during the relevant statutory period. Matter of Daniel OO., 200 AD3d 1418, 1419 (3rd Dept. 2021); Matter of Madelyn V., 199 AD3d 1249, 1250 (3rd Dept. 2021).

Although the statutory text of DRL § 111 does not expressly define the relevant six-month period, the Third Department has unequivocally held that it is the six months preceding commencement of the adoption proceeding, and this Court is bound by that precedent. Critically, "[t]he relevant six-month period is the six months preceding the commencement of the adoption proceeding [emphasis added]." Matter of Khrystopher EE., 182 AD3d 672, 673 n. 2 (3rd Dept, 2020); accord Matter of Joshua FF., 11 AD3d 738, 739 (3rd Dept. 2004). The adoption petition was filed on January 24, 2023. Accordingly, the statutory period for purposes of abandonment is July 25, 2022, through January 24, 2023. As a matter of law, the abandonment inquiry, for the purposes of DRL § 111 is confined to the six months immediately preceding commencement of the adoption proceeding.

Domestic Relations Law § 111(6)(d) provides:

"Payment by a parent toward the support of the child of a fair and reasonable sum, according to the parent's means, shall be deemed a substantial communication by such parent with the child or person having legal custody of the child."

The Legislature's use of the mandatory phrase "shall be deemed" removes judicial discretion where qualifying support payments are established and directs that such payments constitute substantial communication as a matter of law. Respondent submitted certified Support Collection Unit records establishing that he made 26 child-support payments during the relevant six-month period, pursuant to a court-ordered obligation. The support order was entered on consent in 2015 and approved by a Support Magistrate, reflecting a judicial determination that the amount was fair and reasonable according to respondent's means. Neither the petitioner nor the Attorney for the Child submitted evidentiary proof in admissible form controverting those payments. Under the express language of DRL § 111(6)(d), these child support payments are deemed a "substantial communication." As held in Matter of Devin F., 41 AD3d 1197, 1197—1198 (4th Dept. 2007), timely and consistent payment of child support pursuant to a court order constitutes substantial communication and precludes a finding of abandonment under § 111(2)(a). Because the petitioner cannot establish the second conjunctive element of abandonment—failure to communicate—abandonment cannot be found as a matter of law. Matter of Daniel OO., 200 AD3d at 1419; Matter of Madelyn V., 199 AD3d at 1250.

The adoption petition alleged only abandonment as the basis for dispensing with respondent's consent. It did not allege that respondent lacked consent-father status under Domestic Relations Law § 111(1), nor did it plead any facts supporting such a theory. The parties confirmed on the record that abandonment was the sole issue to be litigated. Neither the Petitioner nor the Attorney for the Child has ever sought leave to amend the adoption petition to assert lack of consent-father status. The "consent father" theory appears for the first time in opposition to summary judgment and was never pleaded. Arguments raised for the first time in opposition papers may not expand the scope of the pleadings or supply a new basis to defeat summary judgment. See, Biondi v. Behrman, 149 AD3d 562, 563—64 (1st Dept. 2017).

Notably, respondent does not contend that such a claim would be jurisdictionally [*2]foreclosed. Rather, respondent merely requested additional time to prepare to defend against any newly advanced "consent father" theory as well as to provide notice to the New York State Attorney General of a potential constitutional challenge to the statute's differential treatment of biological fathers based upon marital status. When considering a motion for leave to amend a pleading, particularly on the eve of trial, a trial court must assess whether there is any unfair prejudice to the nonmoving party. As the first day of trial is scheduled for February 25th, to permit amendment of the petition at this juncture, without affording respondent a reasonable adjournment, would result in unfair prejudice. See, CPLR § 3025. Accordingly, as neither the Petitioner nor the Attorney for the Child has ever sought leave to amend the adoption petition, the Court declines to expand the pleadings sua sponte. The Court expresses no view on the merits of any future petition grounded in a different statutory theory.

The Court further notes, as relevant procedural context, that the respondent currently has no pathway toward visitation with the child in the foreseeable future. In prior Family Court Act Article 6 litigation (before this same judge), following a full fact-finding hearing and a Lincoln hearing, the respondent's visitation with the child was suspended by court order, the court finding that "it would not be in the child's best interests — and would in fact be detrimental to him — for the father to have visitation with him in light of the father's "effective abandonment"^[FN1] of the child for over six years and the resulting lack of any relationship between the two. Matter of R.M. v. S.C., 78 Misc 3d 1204(A) (Tompkins Ct. Fam. Ct. 2023). This Court's Decision and Order was affirmed by the Appellate Division, Third Department. Matter of Robert D. v. Sarah E., 238 AD3d 1222 (3rd Dept. 2025), lv. denied, 44 NY3d 909 (2026).

The child, born in August 2010, will turn sixteen years old later this year. The Court acknowledges that the respondent has prevailed in this round of litigation. The Court is nevertheless compelled to ask—to what end? The respondent has succeeded in legally thwarting the adoption of a child with whom he presently has no viable pathway toward a meaningful parental relationship. That success, however, is temporal. Under New York law, once the child reaches the age of eighteen, parental consent is no longer required for adoption. Thus, in August 2028, when the child attains majority, the respondent's continued objection will no longer present a legal barrier to an adult adoption should the child so choose. DRL § 110.

Respondent has established, as a matter of law, that during the six months immediately preceding commencement of the adoption proceeding he engaged in substantial communication within the meaning of Domestic Relations Law § 111(6)(d). Petitioner therefore cannot establish abandonment under § 111(2)(a). Accordingly, it is hereby

ORDERED, that respondent's motion for summary judgment is GRANTED; and it is further

ORDERED, that the adoption petition is DISMISSED.