Father Can't Sell His Parental Rightsby Michael A. Riccardi
New York Law Journal
March 9, 2000
Law Net News
A Manhattan Supreme Court justice has refused to enforce a contract, entered into in 1959, when a man agreed to give up his daughter for adoption in exchange for $2.7 million in support and maintenance from his former father-in-law.
The court may not enforce a contract with the appearance of a cash exchange for an agreement regarding the status of children, Justice Edward H. Lehner said. Lehner said that such a contract is void because it is against public policy not only today but also when it was made more than 40 years ago.
Lehner said the suit arose out of an oral agreement allegedly made "by the members of two extremely wealthy families" to sever a child's legal relationship with her biological father.
He concluded that such an agreement, based on monetary consideration, "is repugnant to and in direct violation of the public policy of this State."
In Phillips v. Estate of Allen, 114786/93, the plaintiff sued the estate of his former father-in-law for breach of contract, saying he was owed more than $1.1 million in unpaid support.
The plaintiff, James J. Phillips, was married to the daughter of the late Charles Allen Jr. in the 1950s, and had a child with his then-wife.
The late Allen was described in a 1996 Forbes magazine article as a "legendary investor" who left an estate well in excess of $1 billion.
Phillips and the daughter, Terry Allen, divorced, and Allen remarried. Allen's new husband wanted to adopt the child of the prior marriage.
According to Phillips, he was approached by an attorney working for the late Allen with the news that the stepfather wished to adopt his child.
Phillips' said that his own father would disinherit him if he allowed the child to be adopted. But he allegedly told Allen that he would consent to the adoption in exchange for $6 million.
Allen allegedly made a counteroffer to pay to Phillips $2.7 million in exchange for his consent to the adoption. The money would be paid out over the plaintiff's life, as needed for support and maintenance. The balance would be paid to Phillips upon Allen's death.
From 1959 until 1991, when Allen severed all ties with his former son-in-law, Phillips received $1.575 million. Allen died in 1994.
Phillips filed a lawsuit seeking damages for breach of contract in the amount of $1.125 million.
Lehner dismissed the lawsuit. "[W]ithout exception," Lehner said, a person may not buy or sell their parental rights. Even a proceeding which may have the appearance of furthering such a deal cannot be undertaken by the courts in New York, he said.
Lehner rejected Phillips' assertion that he was not being paid for relinquishing his parental role, but instead receiving compensation for taking the risk that his own father would disinherit him.
"[E]ven assuming that there was a greater chance of disinheritance because of [Phillips'] consent to the adoption, payment for such a gamble is reimbursement based on the forfeiture of plaintiff's parental rights and responsibilities," Lehner said. "Simply put, regardless of how plaintiff depicts what [Phillips] was selling, Allen was buying only one thing: plaintiff's legal ties to the child."
TRAFFICKING IN CHILDREN Trafficking in children or parental rights is clearly against the public policy of New York state as expressed in several statutes and numerous court rulings, the justice wrote. He pointed out, for instance, the unenforceability of surrogate parenting contracts under Domestic Relations Law §122. And he said that funds given to a biological parent by prospective adoptive parents are strictly limited to reimbursement for prenatal care, birth and postnatal care.
The policy against trafficking in children, Lehner said, was well-established in 1959, when the alleged agreement was struck.
"'A child is not a chattel to be bought or sold,'" Lehner wrote, quoting a 1958 adoption decision from the Appellate Division, Second Department.
Phillips was represented by Gurfein & Graubard. Allen's estate was represented by Bronstein, Van Veen & Bronstein.
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