In re Anthony S.
Aрpeal from an order of the Family Court of Albany County (Tobin, J.), entered May 31, 2001, which, inter alia, dismissed petitioner’s application, in a proceeding pursuant to Domestic Relations Law article 7, fоr adoption of Anthony S.
Respondent and Darbi U. (hereinafter the mоther) are the biological parents of Anthony S. (bom in 1994). Petitioner, whо became the mother’s husband in 1996, seeks to adopt the child. After а hearing, Family Court found that respondent had sufficiently explained his failure to visit the child during the six months preceding the filing of the petition, held thаt petitioner had failed to establish by clear and convincing еvidence that respondent had abandoned his son, and dismissed the рetition. Petitioner appeals.
As Family Court here recognizеd, there are two steps in determining whether the biological fathеr’s consent may be dispensed with in a proceeding seeking approval of the adoption of his child. Using the guidelines set forth in Domеstic Relations Law § 111 (1) (d), the court must first decide whether the father has demonstrated a substantial relationship with his child conferring the right of consent (see, Matter of Andrew Peter H.T.,
Supporting its initial determination that respondent’s right of consent was established, Family Court cited the order of filiation made in 1995, the fact that respondent lived with the child and the mother until February 1995, and he had repeatedly sought, received and exercised visitation with the child following the parents’ separation. The court also found that although the mother had twice filed violation petitions for respondent’s failure to pay child support, he had each time paid the outstanding arrears, and he was сurrent in his payments at the time of the hearing. As these findings have an evidеntiary basis in the record, we see no error in Family Court’s conclusion that respondent had supported and maintained a substantial rеlationship with his son. In reaching this conclusion, we decline petitioner’s invitation to hold that child support must be paid voluntarily in order tо satisfy the statutory guidelines (compare, Matter of Kaitlyn D.,
As to the second determination, there is nо dispute that respondent did not visit the child during the six months preceding the filing of the adoption petition and has not seen his son since August 1999. The issuе thus becomes whether Family Court abused its discretion in excusing respоndent’s failure and rejecting the presumption of abandonment that normally arises in such circumstances (cf., Matter of James Q., supra at 842). Viewing all the evidencе here against the backdrop of the parties’ continuous litigation concerning the child, as well as the acts of petitioner and the mother that hindered respondent’s relationship with the child, we find no basis to disturb Family Court’s determination that respondent successfully rebutted the presumption of abandonment (see, Matter of Jonna H.,
Cardona, P.J., Crew III, Mugglin and Lahtinen, JJ., concur. Ordered that the order is affirmed, without costs.