Appendix — Caban v. Mohammed
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APPENDIX }\
MIGHAEL-ROBHKAR., CLERK |
IN THE
Supreme Court of the United States
OCTOBER TERM, 1977
No. 77-6431
ABDIEL CABAN,
Appellant
—vU.—
KAzIM MOHAMMED AND MARIA MOHAMMED,
Appellees
ON APPEAL FROM THE COURT OF APPEALS
OF THE STATE OF NEW YORK
DOCKETED MARCH 27, 1978
PROBABLE JURISDICTION NOTED MAY 15, 1978
IN THE
Supreme Court of the United States
OCTOBER TERM, 1977
No. 77-6431
ABDIEL CABAN,
Appellant
——))
KAZIM MOHAMMED AND MARIA MOHAMMED,
Appellees
ON APPEAL FROM THE COURT OF APPEALS
OF THE STATE OF NEW YORK
INDEX
Page
. Chronological List of Relevant Docket Entries... 1
2. Relevant Portions of Pleadings in the Trial Court
(A) Petition of Kazim Mohammed and Maria Moham-
med to adopt David Andrew Caban.... 3
(B) Petition of Kazim Mohammed and Maria Moham-
med to adopt Denise Caban.... 5
(C) Citation to Abdiel Caban (re: Petition to adopt
David Andrew Caban) ......... 7
(D) Citation to Abdiel Caban (re: Petition to adopt
NE otis 9
ii
10.
11.
INDEX
(E) Answer to Petition and Cross-Petition of Abdiel
Caban and Nina Caban for adoption of David
Po | IE ORE EL LP OES RT EE EEA RPL
(F) Answer to Petition and Cross-Petition of Abdiel
Caban and Nina Caban for adoption of Denise
RNS oan cacscaccunesnsinasadtncubaisinses tasaeae enna eer
(G) Answer of Maria Mohammed to Cross-Petition to
adopt David Andrew Caban.....00000000000.00000000eeeeeeeeee es
(H) Answer of Maria Mohammed to Cross-Petition to
I TI ID asc ecccctteencaccesoesstzenlcsencnoanns
Opinion of Honorable Nathan R. Sobel, Surrogate, Sur-
rogate’s Court, Kings County, filed August 3, 1976...
Order of Surrogate’s Court, Kings County, per Honor-
able Nathan R. Sobel, filed September 10, 1976, dis-
missing Abdiel Caban’s objection to the adoption of
David Andrew Caban, and granting the petition to
By eB” | ee nn
Order of Surrogate’s Court, Kings County, per Honor-
able Nathan R. Sobel, filed September 10, 1976, dis-
missing Abdiel Caban’s objection to the adoption of
Denise Caban, and granting the petition to adopt
I I icici ee
Order of Surrogate’s Court, Kings County, per Honor-
able Nathan R. Sobel, Surrogate, approving adoption
of David Andrew Caban, filed September 10, 1976....
Order of Surrogate’s Court, Kings County, per Honor-
able Nathan R. Sobel, Surrogate, approving adoption
of Denise Caban, filed September 10, 1976 ..........00......
Memorandum opinion of Supreme Court of the State of
New York, Appellate Division, Second Department,
affirming all four Orders of Adoption, filed February
SNOT. ccncac ach cienistestamksciallscodieustbcsanlsenteespinenatahcanssnat ieee eee
Order of Appellate Division, Second Department, affirm-
ing all four Orders of the Surrogate’s Court, filed Feb-
TUR TR, BGS vcccendsivessctescces 5 Xbuasabieedetaobatinaaehledmcscaehense cnn
Memorandum opinion of Court of Appeals of the State
of New York, filed November i7, 1977, dismissing
the appeal from the Appellate Division Order of
Fi ER SEINE ENED SMe NEL BEES
Judgment and Remittitur of the Court of Appeals of
the State of New York, dismissing the appeal from
the Order of Affirmance of the Appellate Division,
GRO TRON Ti, BGG acscssicicienicetintespeincin cee
Page
11
16
34
37
39
41
43
45
46
INDEX
12. Order of Court of Appeals of the State of New York
filed January 10, 1978, denyi
for reargument » Genying Abdiel Caban’s motion
13. Order of Court of Appeals of the State of New York
filed February 14, 1978, denyi i ’ ;
for reargument , ying Abdiel Caban S motion
14. Order granting appellant’s moti
lon for leave to proc
In Forma Pauperis, entered by the Supreme a se
15. Order noting probable jurisdiction j ;
jurisdiction in this cas
by the Supreme Court of the United States. aan
iii
Page
48
49
50
51
Te eee
CHRONOLOGICAL LIST OF
RELEVANT DOCKET ENTRIES
January 15, 1976—Petitions filed with Clerk, Surrogate’s
Court, Kings County.
February 26, 1976—Citations issued to Abdiel Caban by Sur-
rogate’s Court, Kings County.
March 8, 1976—Answers to Petitions and Cross-Petitions to
adopt of Abdiel Caban and Nina Caban, filed with Clerk,
Surrogate’s Court, Kings County.
March 9, 1976—Answers of Kazim Mohammed and Maria
Mohammed to Cross-Petitions filed with Clerk, Surro-
gate’s Court, Kings County.
August 3, 1976—Opinion of Surrogate’s Court, Kings County,
filed with Clerk of that Court.
September 10, 1976—Orders of Adoption filed with Clerk,
Surrogate’s Court, Kings County.
September 30, 1976—Notices of Appeal by Abdiel Caban to
Supreme Court of the State of New York, Appellate
Division, Second Department, filed with Clerk of Surro-
gate’s Court, Kings County.
February 22, 1977—Order of Affirmance by Appellate Divi-
sion, Second Department, filed with Clerk of that Court.
February 22, 1977—Memorandum Opinion of Appellate Divi-
sion, Second Department, filed with Clerk of that Court.
April 12, 1977—Notice of Appeal to Court of Appeals, State
of New York, filed with Clerk of Surrogate’s Court, Kings
County.
November 17, 1977—Judgment of Court of Appeals dismissing
‘appeal, filed with Clerk of that Court.
November 17, 1977—Memorandum Opinion of Court of Ap-
peals, filed with Clerk of that Court.
January 10, 1878—Order of Court of Appeals denying Abdiel
Caban’s motion for reargument, filed with Clerk of that
Court.
(1)
—— e
2
February 14, 1978—Order of Court of Appeals denying —
Caban’s second motion for reargument, filed with Clerk
of that Court.
March 10, 1978—Notice of Appeal to Supreme Court of -”
United States, filed with Clerk of Surrogate’s Court,
Kings County.
March 13, 1978—Notice of Appeal to Supreme Court of the
United States, filed with Clerk of Court of Appeals.
March 22, 1978—Notice of Appeal to Supreme Court of the
United States, filed with Clerk of Court of Appeals.
, isdicti t docketed
March 27, 1978—Appellant’s Jurisdiction Statemen
with the Clerk of the Supreme Court of the United States.
May 15, 1978—Order of the Supreme Court of the United
States granting Appellant’s Motion for Leave to Proceed
In Forma Pauperis.
May 15, 1978—Order of the Supreme Court of the United
States noting probable jurisdiction of this case.
3
IN THE SURROGATE’S COURT
KINGS COUNTY, NEW YORK
File No. 20007, 1976
IN THE MATTER OF THE ADOPTION OF
DAVID ANDREW CABAN
a minor under the age of fourteen years, by
KAZIM MOHAMMED AND MARIA MOHAMMED, his wife
TO THE HONORABLE NATHAN R. SOBEL
Surrogate of Kings County:
PETITION—Filed January 16, 1976
The petition of KAZIM MOHAMMED and MARIA
MOHAMMED his wife, respectfully shows:
1. That your petitioners are over the age of twenty-
one years, citizens of the United States, and legally mar-
ried, living together as husband and wife
2. That the post-office address and place of residence
of your petitioners is 31 Ocean Parkway, Brooklyn, New
York
3. That your petitioners are desirous of adopting as
their own child DAVID AN DREW CABAN, a male minor
child, born on the 16th day of July, 1969, at New York,
New York
4. That the religious faith of said minor child is
Catholic that the religious faith of the parents of said
child, as petitioners are informed and verily believe is
Catholic; that the religious faith of petitioner Kazim
Mohammed is Christian; that the religious faith of peti-
tioner Maria Mohammed is Catholic
5. That your petitioners’ family residing with peti-
tioners consist of Steven Kazim Mohammed, son, bern on
December 7, 1975. |
6. The said minor child has resided continuously with
petitioner Maria Mohammed ( natural mother) since its
birth, July 16, 1969 and with both petitioners since their
marriage on January 30, 1974
—,.
4
. That the occupation of your petitioner Kazim Mo-
uae is a rie driver employed by the Hector Taxi
Corp., 27-39 - 86th Street, sir New York and earns
roximately $240.00 net weekly
a “That ae of said minor child is Maria Mo-
hammed nee Acevedo, the natural mother and petitioner
herein; that the putative father is Abdiel Caban presently
residing at #565 - 85th Street, Brocklyn, New York
8.A That Abdiel Caban has abandoned the child David
rew Caban
“. That your petitioner obtained custody of the minor
child in the following manner: That the petitioner Maria
Mohammed nee Acevedo is the natural mother of the
minor child herein
10. That said child has no property or means of sup-
port
11. That said minor child has no general or testa-
ardian
rat aon there are no persons other than those men-
tioned interested in this proceeding, to the best of your
petitioners’ information and belief, except Abdiel Caban,
the putative father
13. That all persons above named are of full age ex-
cept the minor herein and that all of the parties are
of sound mind gig
14. That the person, whose adoption is sought herein,
has not been previously adopted
15. That no previous application for the relief prayed
for herein has been made to any court or judge
WHEREFORE, your petitioners pray for an order ap-
proving the adoption of said DAVID ANDREW CABAN
by your petitioners and directing that the said DAVID
ANDREW CABAN shall henceforth be regarded and
treated in all respects as the child of your petitioners and
be known and called by the name of DAVID ANDREW
MOHAMMED
/s/ Kazim Mohammed
/s/ Maria Mohammed
| Affidavit of Petitioners and Jurat (Omitted in Printing) ]
5
IN THE SURROGATE’S COURT
KINGS COUNTY, NEW YORK
File No. 20006, 1976
IN THE MATTER OF THE ADOPTION OF
DENISE CABAN
a minor under the age of fourteen years, by
KAZIM MOHAMMED AND MARIA MOHAMMED, his wife
TO THE HONORABLE NATHAN R. SOBEL
Surrogate of Kings County:
PETITION—Filed J anuary 15, 1976
The petition of KAZIM MOHAMMED and MARIA
MOHAMMED his wife, respectfully shows:
1. That your petitioners are over the age of twenty-one
years, citizens of the United States, and legally married,
living together as husband and wife
2. That the post-office address and place of residence
of your petitioners is 31 Ocean Parkway, Brooklyn, New
York
3. That your petitioners are desirous of adopting as
their own child DENISE CABAN, a female minor child,
born on the 12th day of March, 1971, at Brooklyn, New
York
4. That the religious faith of said minor child is
Catholic that the religious faith of the parents of said
child, as petitioners are informed and verily believe is
Catholic; that the religious faith of petitioner Kazim
Mohammed is Christian; that the religious faith of
petitioner Maria Mohammed is Catholic
5. That your petitioners’ family residing with peti-
tioners consist of Steven Kazim Mohammed, son, born
on December 17, 1975
6. That said minor child has resided continuously with
petitioner Maria Mohammed (natural mother) since her
birth, March 12, 1971 and with both petitioners since their
marriage on January 30, 1974
6
7. That the occupation of your petitioner Kazim Mo-
hammed is a taxicab driver employed by the Hector
Taxi Corp., 27-39 - 86th Street, Brooklyn, New York and
earns approximately $240.00 net weekly
8. That the parent of said minor child is Maria Mo-
hammed nee Acevedo, the natural mother and petitioner
herein; that the putative father is Abdiel Caban pres-
ently residing at #565 - 85th Street, Brooklyn, New York
8.A That Abdiel Caban has abandoned the child Denise
Caban
9. That your petitioner obtained custody of the minor
child in the following manner: That the petitioner Maria
Mohammed nee Acevedo is the natural mother of the
minor child herein
10. That said minor child has no property or means
of support
11. That said minor child has no general or testa-
mentary guardian
12. That there are no persons other than those herein
interested in this proceeding, to the best of your peti-
tioners’ information and belief, except Abdiel Caban, the
putative father
13. That all persons above named are of full age ex-
cept the minor herein and that all of the parties are of
sound mind
14. That the person, whose adoption is sought herein,
has not been previously adopted
15. That no previous application for the relief prayed
for herein has been made to any court or judge
WHEREFORE, your petitioners pray for an order
approving the adoption of said DENISE CABAN by your
petitioners, and directing that the said DENISE CABAN
shall henceforth be regarded and treated in all respects
as the child of your petitioners and be known and called
by the name of DENISE MOHAMMED
/s/ Kazim Mohammed
/8/ Maria Mohammed
[ Affidavit of Petitioners and Jurat (Omitted in Printing) ]
7
IN THE SURROGATE’S COURT
KING’S COUNTY, NEW YORK
File No. 20007, 1976
CITATION
The People of The Sate of New York
By the Grace of God Free and Independent
To ABDIEL CABAN
565 - 85th Street
Brooklyn, New York
Send Greeting:
A petition having been filed b KAZIM MOHAM
and MARIA MOHAMMED A are domiciled a
Ocean Parkway, Brooklyn, New York, praying for an
order approving the adoption of DAVID ANDREW CA-
BAN by the petitioners named in the said petition
KAZIM MOHAMMED and MARIA MOHAMMED, hus-
House, Civic Centre, 2 Johnson Street, Brooklyn, New
York, on March 11th, 1976, at 9:30 A.M., why ee order
dispensing with his consent to the adoption of said minor
child by the petitioners,
8
Dated, Attested and Sealed, February 26th, 1976.
[L.S.]
HON. NATHAN R. SOBEL
Surrogate
/s/ Kevin C. Fogarty
Clerk
Name of Attorney—Morris Schulslaper
Tel. No.—212-624-7232
Address—16 Court Street, Brooklyn, New York 11241
This Citation is served upon you as required by law. You are not
obliged to appear in person. If you fail to appear it will be assumed
that you consent to the proceedings, unless you file written objec-
tions thereto. You have a right to have an attorney-at-law appear
for you.
|
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9
IN THE SURROGATE’S COURT
KINGS COUNTY, NEW YORK
File No. 20006, 1976
CITATION
The People of The State 6f New York
By the Grace of God Free and Independent
To ABDIEL CABAN
565 - 85th Street
Brooklyn, New York
Send Greeting:
A petition having been filed by KAZIM MOHAMMED
and MARIA MOHAMMED who are domiciled at 31
Ocean Parkway, Brooklyn, New York, praying for an
order approving the adoption of DENISE CABAN by the
petitioners named in the said petition, KAZIM MOHAM-
MED, husband and wife, and directing that the said
minor child shall henceforth be treated and regarded
in all respects as the child of the petitioners and be
known and called by the name of DENISE MOHAMMED
YOU ARE HEREBY CITED TO SHOW CAUSE be-
fore the Surrogate’s Court, Kings County, at the Court
House, Civie Centre, 2 Johnson Street, Brooklyn, New
York, on March 11th 1976, at 9:30 A.M., why an order
should not be made granting petition for adoption by
the said petitioners and a further order determining
that Abdiel Caban has abandoned said minor child and
dispensing with his consent to the adoption of said minor
child by the petitioners.
10
Dated, Attested and Sealed, February 26th, 1976.
[L.S.]
Hon. NATHAN R. SOBEL
Surrogate
/s/ Kevin C. Fogarty
Clerk
Name of Attorney—Morris Schulslaper
Tel. No.—212-624-7232
Address—16 Court Street, Brooklyn, New York 11241
This Citation is served upon you as required by law. You are not
obliged to appear in person. If you fail to appear it will be assumed
that you consent to the proceedings, unless you file written objec-
tions thereto. You have a right to have an attorney-at-law appear
for you.
11
IN THE SURROGATE’S COURT
KINGS COUNTY, NEW YORK
File No. 20007/1976
IN THE MATTER OF THE ADOPTION OF
DAVID ANDREW CABAN
a minor under the age of fourteen years by
KAZIM MOHAMMED AND MARIA MOHAMMED, his wife
ANSWER TO PETITION OF ABDIEL CABAN, NAT-
URAL FATHER OF THE INFANT, DAVID AN-
DREW CABAN, AND CROSS-PETITION OF AB-
DIEL CABAN AND HIS WIFE, NINA CABAN—
Filed March 8, 1976
The natural father, ABDIEL CABAN, and his wife,
NINA CABAN, answering the verified petition of KAZIM
MOHAMMED and MARIA MOHAMMED, his wife,
states as follows:
FIRST: Denies each and every allegation contained in
paragraphs numbered and designated as “6” and “8A”.
SECOND: Denies having knowledge or information
sufficient to form a belief as to the truth of the allega-
tions contained in paragraphs numbered and designated
as os ae oa oe Ae 7s Me aa a ee ay af pe | Soe" oe
“1s” and “16”.
AS AND FOR A CROSS-PETITION FOR THE ADOP-
TION OF DAVID ANDREW CABAN, BY ABDIEL
CABAN, THE NATURAL FATHER, AND NINA
CABAN, HIS WIFE.
The Cross-Petitioners herein allege as follows:
1, That I, ABDIEL CABAN, one of the cross-peti-
tioners herein, am the natural father and MARIA MO-
HAMMED is ihe mother of the infant, DAVID AN-
DREW CABAN.
2. That I and petitioner, MARIA MOHAMMED,
lived together as husband and wife from about July of
1968 until some time in late March of 1974.
12
38. That on July 16, 1969, about one year after I
began living with petitioner, MARIA MOHAMMED, my
child, DAVID ANDREW CABIN, was born of the re-
lationship between petitioner MARIA MOHAMMED and
myself, and we gave the child my surname.
4. That during all the period of time petitioner MA-
RIA MOHAMMED and I lived together, although not
legally married, we held ourselves out to the world as
yeing husband and wife, living together as such.
5. That during all that period of time, I supported,
cared for and loved my child, DAVID ANDREW CA-
BAN, who bore my name.
6. That during all that period of time, I fully ac-
knowledged the paternity of my child, DAVID ANDREW
CABAN, to the entire world.
7. That in late March of 1974, the petitioner MARIA
MOHAMMED left the apartment that she resided in
with me at 185 St. Mark’s Avenue, Brooklyn, New York,
without explanation, taking my child, DAVID ANDREW
CABAN, with her.
8. That I pleaded with the said MARIA MOHAMMED
to return with my child DAVID ANDREW CABAN
and to continue to live with me so that I could continue
to participate in the care, up-bringing and love of my
child, DAVID ANDREW CABAN, but the said MARIA
MOHAMMED refused.
9. That on January 30, 1974, upon information and
belief, and unbeknownst to me, the said MARIA MO-
HAMMED inarvicd her present husband and co-petitioner,
KAZIM MOHAMMED.
10. That from the time of such alleged marriage, un-
til late March of 1974, when the said MARIA MO-
HAMMED left my household without justification, the
petitioner, MARIA MOHAMMED, continued to reside
with me as husband and wife, despite her allegation that
she married the co-petitioner, KAZIM MOHAMMED,
on January 30, 1974.
13
11. That during the period of late March, 1974
when the said MARIA MOHAMMED left our apartment
at 185 St. Mark’s Avenue, Brooklyn, New York, until
the end of June, 1974, the said MARIA MOHAMMED
delivered my child, DAVID ANDREW CABAN, to me
for weekends, bringing him on Friday evening and pick-
ing him up on Sunday evening. During these periods,
I gave my child all the care and attention which I could
as a loving father, completely attending to my child’s
every need.
12. That during the period of time between peti-
tioner MARIA MOHAMMED’S leaving our apartment
in late March, 1974 up to the end of June 1974, I pleaded
with the said MARIA MOHAMMED to return home
with my child, DAVID ANDREW CABAN, and in this
connection, proposed marriage to the petitioner, MARIA
MOHAMMED, ali to no avail.
13. That to show my good faith in making such offer
of marriage to petitioner MARIA MOHAMMED, I ob-
tained a divorce from my first wife, from whom I had
been separated for some fourteen years prior to June
of 1974.
14. That said divorce was duly granted to me in the
month of June, 1974.
15. That these weekend visits with my child, DAVID
ANDREW CABAN, ceased around the end of June, 1974,
when the petitioner MARIA MOHAMMED disappeared
with the child, DAVID ANDREW CABAN.
16. That I later learned that the petitioner, MARIA
MOHAMMED, nad spirited my child out of the country
and sent my child to Puerto Rico to live, not with peti-
tioner MARIA MOHAMMED, but with her parents. This
deprived my child of both its parents. She took the child
away from his father and, rather than care for him as
the mother, she sent him away so that the child would
have neither a father or a mother to take care of him.
17. That sometime in October of 1974, I learned of
the whereabouts of my child from my own parents, who
14
reside in Puerto Rico, and who advised me that my
child, DAVID ANDREW CABAN, was then living with
petitioner MARIA MOHAMMED’S mother in Puerto
Rico.
18. Thereafter I carried on and received correspond-
ence with and from my parents so as to keep abreast
of the whereabouts and welfare of my child, DAVID
ANDREW CABAN.
19. My child, DAVID ANDREW CABAN, continued
to reside in Puerto Rico, away from both of his natural
parents, until November of 1975, when I assumed cus-
tody over my child, DAVID ANDREW CABAN, not as
against his mother, who had abandoned the said child
and remained away from him in New York while he
was in Puerto Rico, but as against his maternal giand-
mother.
20. My child, DAVID ANDREW CABAN, resided
with me and my present wife, NINA CABAN, who joins
in this cross-petition for adoption, until January 15, 1976,
when by order of the Family Court dated January 15,
1976, custody of my child, DAVID ANDREW CABAN,
was temporarily given to the said MARIA MOHAMMED
pending a hearing as to permanent custody.
21. During the period when I had custody of my
child, DAVID ANDREW CABAN, I cared for, supported,
loved, educated, provided clothing, medical care, and I
provided for my child’s every need.
22. That the said order of the Family Court provided
for visitation by me on Sundays between 11:00 A.M. to
6:00 P.M., which visitation has been exercised and en-
joyed by both father and child on each and every Sun-
day to date.
23. That I am gainfully employed and ready, willing
and able to support and care for my child, DAVID AN-
DREW CABAN.
24. That my child, DAVID ANDREW CABAN, loves
me as his father as I love him as my child, and he also
loves my wife, NINA CABAN, and would prefer me and
15
my wife as parents, and, upon information and belief,
wishes to live with me and my wife, NINA CABAN.
25. That my said child and my wife, NINA CABAN,
have already established a warm loving and caring re-
lationship with each other.
26. That my wife, NINA CABAN, is not employed
outside the home, and is ready, willing and able to de-
vote full time to the caring and up-bringing of my child
and to in all respects be a loving mother to the said
child.
27. That I and my wife, NINA CABAN, are in the
process of purchasing a private heme in Queens County,
having seven rooms in all, including four bedrooms, a
full basement and expansion attic, which will have ample
room to accommodate my child DAVID ANDREW CA-
BAN.
28. That I verily believe that the best interests of
my child, DAVID ANDREW CABAN, will be served
by granting me permanent custody of my child, DAVID
ANDREW CABAN, by permitting the adoption of the
said child by me and my wife, NINA CABAN, and by
denying the petition of MARIA MOHAMMED and her
husband, KAZIM MOHAMMED herein.
WHEREFORE, your cross-petitioner pray for an order
denying the petition of MARIA MOHAMMED and
KAZIM MOHAMMED and granting the cross-petition
for adoption of my son, DAVID ANDREW CABAN, by
me and my wife, NINA CABAN, for all of which relief
no previous application has been made.
Dated: New York, New York
March 4, 1976
/s/ Abdiel Caban
ABDIEL CABAN
/s/ Nina Caban
NINA CABAN
| Affidavit of Respondents
and Jurat (Omitted in Printing) ]
16
IN THE SURROGATE’S COURT
KINGS COUNTY, NEW YORK
File No. 20006/1976
IN THE MATTER OF THE ADOPTION OF
DENISE CABAN
a minor under the age of fourteen years by
KAZIM MOHAMMED AND MARIA MOHAMMED, his wife
ANSWER TO PETITION OF ABDIEL CABAN, NAT-
URAL FATHER OF THE INFANT, DENISE CA-
BAN, AND CROSS-PETITION OF ABDIEL CABAN
AND HIS WIFE, NINA CABAN—Filed March 8,
1976
The natural father, ABDIEL CABAN, and his wife,
NINA CABAN, answering the verified petition of
KAZIM MOHAMMED and MARIA MOHAMMED, his
wife, states as follows:
FIRST: Denies each and every allegation contained in
paragraphs numbered and designated as “6” and “8A”.
SECOND: Denies having knowledge or information
sufficient to form a belief as to the truth of the allega-
tions contained in paragraphs numbered and designated
as wi ge" “7. x —. “o', ne at —. “10”, a gl “aes
“13”, and “15”.
AS AND FOR A CROSS-PETITION FOR THE ADOP-
TION OF DENISE CABAN, BY ABDIEL CABAN,
THE NATURAL FATHER, AND NINA CABAN
HIS WIFE
The Cross-Petitioners herein alleged as follows:
1. That I, ABDIEL CABAN, one of the cross-peti-
tioners herein, am the natural father and MARIA MO-
i is the mother of the infant, DENISE CA-
AN.
2. That I and petitioner, MARIA MOHAMMED, lived
together as husband and wife from about July of 1968
until some time in late March of 1974.
Pe mee
17
3. That on March 12, 1971, about two and one-ialf
years after I began living with petitioner, MARIA MO-
HAMMED, my child, DENISE CABAN, was born of
the relationship between petitioner MARIA MOHAM-
MED and myself, and we gave the child my surname.
4. That during all the period of time petitioner MA-
RIA MOHAMMED and I lived together, although not
legally married, we held ourselves out to the world as
being husband and wife, living together as such.
5. That during all that period of time, I supported,
cared for and loved my child, DENISE CABAN, who
bore my name. :
6. That during all that period of time, I fully ac-
knowledged the paternity of my child, DENISE CABAN,
to the entire world.
7. That in late March of 1974, the petitioner MARIA
MOHAMMED left the apartment that she resided in with
me at 185 St. Mark’s Avenue, Brooklyn, New York, with-
out explanation, taking my child, DENISE CABAN with
her.
3. That I pl.uded with the said MARIA MOHAMMED
to return wtih my child DENISE CABAN and to con-
tinue to live with me so that I could continue to par-
ticipate in the care, upbringing and love of my child,
DENISE CABAN, but the said MARIA MOHAMMED
refused.
9. That on January 30, 1974, upon information and
belief, and unbeknownst to me, the said MARIA MO-
HAMMED married her present husband and co-peti-
tioner, KAZIM MOHAMMED.
10. That from the time of such alleged marriage,
until late March of 1974, when the said MARIA MO-
HAMMED left my household without justification, the
petitioner, MARIA MOHAMMED, continued to reside
with me as husband and wife, despite her allegation that
she married the co-petitioner, KAZIM MOHAMMED, on
January 30, 1974.
eee ===
18
11. That during the period of late March, 1974 when
the said MARIA MOHAMMED left our apartment at
185 St. Mark’s Avenue, Brooklyn, New York, until the
end of June, 1974, the said MARIA MOHAMMED de-
livered my child, DENISE CABAN, to me for weekends,
bring her on Friday evening and picking her up on Sun-
day evening. During these periods, I gave my child all
the care and attention which I could as a loving father,
completely attending to my child’s every need.
12. That during the period of time between petitioner
MARIA MOHAMMED’S leaving our apartment in late
March, 1974 up to the end of June 1974, I pleaded with
the said MARIA MOHAMMED to return home with my
child, DENISE CABAN, and in this connection, pro-
posed marriage to the petitioner, MARIA MOHAMMED,
all to no avail.
13. That to show my good faith in making such offer
of marriage to petitioner MARIA MOHAMMED, I ob-
tained a divorce from my first wife, from whom I had
been separated for some fourteen years prior to June
of 1974.
14. That said divorce was duly granted to me in the
month of June, 1974.
15. That these weekend visits with my child, DENISE
CABAN, ceased around the end of June, 1974, when the
petitioner MARIA MOHAMMED disappeared with the
child, DENISE CABAN.
16. That I later learned that the petitioner, MARIA
MOHAMMED, had spirited my child out of the country
and sent my child to Puerto Rico to live, not with pe-
titioner MARIA MOHAMMED, but with her parents.
This deprived my child of both its parents. She took
the child away from her father and, rather than care
for her as the mother, she sent her away so that the child
would have neither a father or a mother to take care of
her.
17. That sometime in October of 1974, I learned of
the whereabouts of my child from my own parents, who
19
reside in Puerto Rico, and who advised my that my child,
DENISE CABAN, was then living with petitioner MA-
RIA MOHAMMED’S mother in Puerto Rico.
18. Thereafter I carried on and received correspond-
ence with and from my parents so as to keep abreast
of the whereabouts and welfare of my child, DENISE
CABAN.
19. My child, DENISE CABAN, continued to reside
in Puerto Rico, away from both of her naturai parents,
until November of 1975, when I assumed custody over
my child, DENISE CABAN, not as against her mother,
who had abandoned the said child and remained away
from her in New York while she was in Puerto Rico,
but as against her maternal grandmother.
20. My child, DENISE CABAN, resided with me
and my present wife, NINA CABAN, who joins in this
cross-petition for adoption, until January 15, 1976,
when by order of the Family Court dated January 15,
1976, custody of my child, DENISE CABAN, was tem-
porarily given to the said MARIA MOHAMMED pend-
ing a hearing as to permanent custody.
21. During the period when I had custody of my child,
DENISE CABAN, I cared for, supported, loved, edu-
cated, provided clothing, medical care, and I provided
for my child’s every need.
22. That the said order of the Family Court provided
for visitation by me on Sundays between 11:00 A.M.
to 6:00 P.M., which visitation has been exercised and
enjoyed by both father and child on each and every Sun-
day to date.
23. That I am gainfully employed and ready, willing
and able to support and care for my child, DENISE
CABAN.
24. That my child, DENISE CABAN, loves me as
her father as I love her as my child, and she also loves
my wife, NINA CABAN, and would prefer me and my
wife as parents, and, upon information and belief, wishes
to live with me and my wife, NINA CABAN.
20
25. That my said child and my wife, NINA CABAN,
have already established a warm loving and caring re-
lationship with each other.
26. That my wife, NINA CABAN, is not employed
outside the home, and is ready, willing and able to devote
full time to the caring and up-bringing of my child and
to in all respects be a loving mother to the said child.
27. That I and my wife, NINA CABAN, are in the
process of purchasing a private home in Queens County,
having seven rooms in all, including four bedrooms, a
full basement and expansion attic, which will have ample
room to accommodate my child, DENISE CABAN.
28. That I verily believe that the best interests of my
child, DENISE CABAN, will be served by granting me
permanent custody of my child, DENISE CABAN, by
permitting the adoption of the said child by me and my
wife, NINA CABAN, and by denying the petition of
MARIA MOHAMMED and her husband, KAZIM MO-
HAMMED herein.
WHEREFORE, your cross-petitioners pray for an or-
der denying the petition of MARIA MOHAMMED and
KAZIM MOHAMMED and granting the cross-petition
for adoption of my daughter, DENISE CABAN, by me
and my wife, NINA CABAN, for all of which relief no
previous application has been made.
Dated: New York, New York
March 4, 1976
/s8/ Abdiel Caban
ABDIEL CABAN
/s/ Nina Caban
NINA CABAN
| Affidavit of Respondents and Jurat
(Omitted in Printing) ]
21
IN THE SURROGATE’S COURT
KINGS COUNTY, NEW YORK
File #20006/76
IN THE MATTER OF THE ADOPTION OF
DAVID ANDREW CABAN
a minor under the age of fourteen years by
KAZIM MOHAMMED AND MARIA MOHAMMED, his wife
ANSWER TO THE CROSS-PETITION OF
ABDIEL CABAN and NINA CABAN
Filed March 9, 1976
MARIA MOHAMMED, the mother of DAVID AN-
DREW CABAN and KAZIM MOHAMMED, her law-
fully wedded husband, by their attorney, MORRIS
SCHULSLAPER, ESQ., in answer to the cross-petition
of ABDIEL CABAN, reputedly the father of the child
and NINA CABAN, respectfully set forth to the court
as follows:
FIRST: Denies each and every allegation set forth
in paragraph of the cross-petition marked and designated
“T” except to admit that Maria Mohammed, the —
is the mother of David Andrew Caban.
SECOND: Denies each and every allegation set forth
in paragraphs of the cross-petition marked “2”, “3”,
“4”, “5” and “6” except to admit that the child, DAVID
ANDREW CABAN was born to the petitioner Maria
Mohammed on July 16, 1969; that a certain certificate of
birth for the said child records, by the sole act of the pe-
titioner, the name of ABDIEL CABAN as the father;
that at the time of the child’s birth the petitioner, Maria
Mohammed and the cross-petitioner, Abdiel Caban to-
gether occupied a premises located at 186 St. Marks
Avenue, Brooklyn, New York.
THIRD: Denies each and every allegation contained
in paragraphs of the cross-petition marked and desig-
nated “7”, “8”, “10”, “11”, “12” except to admit that,
*n on or about the latter part of the year 1973 the pe-
22
titioner, Maria Mohammed, together with her child,
DAVID ANDREW CABAN, left the premises 185 St.
Marks Avenue, Brooklyn, New York.
FOURTH: Denies each and every allegation contained
in paragraphs of the cross-petition marked and designated
“19”, “20”, “22” and “28” except to admit that on or
about the 22nd dey of November, 1975 the said Abdiel
Caban and/or Nina Caban, and/or, on information and
belief, other persons acting on their behalf and instiga-
tion, without judicial process or order but by trick, device,
show and/or force of arms, captivated, detained the child,
DAVID ANDREW CABAN and absconded with the in-
fant from the home of his maternal grandmother in
Puerto Rico where he was lawfully, although temporarily
sojourning; that the said Abdiel Caban and Nina Caban
secreted the said child from the petitioner and her hus-
band, Kazim Mohammed, denied her information and all
access to the child; physically and forcibly detained the
said child from the petitioners; proclaimed, by self as-
sumed authority, custody of the said child; that only in
response to an order of the Family Court of the State of
New York by the petitioner-mother made, was the custody
of the child returned to her on January 15, 1976; that at
no time, other than between November 22, 1975, when the
cross-petitioner, by an act of violent self help, without
legal authority or process and without seeking such legal
authority or process secreted the child from his mother /
petitioner, did the said Abdiel Caban have enstody of
DAVID ANDREW CABAN in law or fact; that, on
January 15, 1975 only upon the petitioner consenting, the
Family Court of the State of New York, County of Kings,
allowed, pending a full hearing before it, the cross-
petitioner/putative father, Abdiel Caban, the right to visit
with the said child, DAVID ANDREW CABAN.
FIFTH: Denies each and every allegation contained in
paragraph of the cross-petition marked and designated
“15” and specifically denies that the petitioner, Maria
Mohammed disappeared with the child, DAVID ANDREW
CABAN.
23
SIXTH: Denies knowledge and information sufficient to
form a belief as to the truth or falsity of the allegations
contained in paragraphs of the cross-petition marked and
designated “—; “——. "—T". “——. gr “——". "20". “96”
and “27”.
WHEREFORE, the petitioners respectfully pray for an
order dismissing the cross-petition of ABDIEL CABAN,
the reputed father of DAVID ANDREW CABAN and
NINA CABAN and; the consent of the said ABDIEL
CABAN thereto not being statutorily required, that his
objection to the herein petition for the adoption of DAVID
ANDREW CABAN be dismissed; that the petition for the
adoption of the said child proceed accordingly and; for
such other and further relief as may recommend itself
to the court.
MORRIS SCHULSLAPER
Attorney for Petitioners,
Kazim and Maria Mohammed
24
IN THE SURROGATE’S COURT
KINGS COUNTY, NEW YORK
File #20006/76
IN THE MATTER OF THE ADOPTION OF a
DENISE CABAN
a minor under the age of fourteen years
by KAzIM MOHAMMED and MARIA MOHAMMED, his wife
ANSWER TO THE CROSS-PETITION OF
ABDIEL CABAN and NINA CABAN
Filed March 9, 1976
MARIA MOHAMMED, the mother of DENISE
CABAN and KAZIM MOHAMMED, her lawfully wedded
husband, by their attorney, MORRIS SCHULSLAPER,
ESQ., in answer to the cross-petition of ABDIEL CABAN,
reputedly the father of the child and NINA CABAN,
respectfully set forth to the court as follows:
FIRST: Denies each and every allegation set forth in
paragraph of the cross-petition marked and designated
“1” except to admit that Maria Mohammed, the petitioner
is the mother of Denise Caban.
SECOND: Denies each and every allegation set forth in
paragraphs of the cross-petition marked “2”, “3”, “4”,
“5” and “6” except to admit that the child, DENISE
CABAN was born to the petitioner Maria Mohammed on
March 12, 1971; that a certain certificate of birth for the
said child records, by the sole act of the petitioner, the
name of ABDIEL CABAN as the father; that at the time
of the child’s birth the petitioner, Maria Mchammed and
the cross-petitioner, Abdiel Caban together occupied a
premises located at 185 St. Marks Avenue, Brooklyn,
New York.
THIRD: Denies each and every allegation contained
in paragraphs of the cross-petition marked and designated
“rq? 68”, 10”, “11”, “12” except to admit that, in, on or
about the latter part of the year 1973 the petitioner,
25
Maria Mohammed, together with her child, DENISE
CABAN, left the premises 185 St. Marks Avenue, Brook-
lyn, New York.
FOURTH: Denies each and every allegation contained
in paragraphs of the cross-petition marked and designated
“19”, “20”, “22” and “28” except to admit that on or
about the 22nd day of November, 1975 the said /bdiel
Caban and/or Nina Caban, and/or, on information and
belief, other persons acting on their behalf and instigation,
without judicial process or order but by trick, device, show
and/or force of arms, captivated, detained the child,
DENISE CABAN and absconded with the infant from the
home of her maternal grandmother in Puerto Rico where
she was lawfully, although temporarily sojourning; that
the said Abdiel Caban and Nina Caban secreted the said
child from the petitioner and her husband, Kazim Mo-
hammed, denied her information and all access to the
child; physically and forcibly detained the said child from
the petitioners, proclaimed, by seif assumed authority,
custody of the said child; that only in response to an order
of the Family Court of the State of New York by the
petitioner-mother made, was the custody of the child re-
turned to her on January 15, 1976; that at no time, other
than between November 22, 1975 when the cross-
petitioner, by an act of violent self help, without legal
authority or process and without seeking such legal
authority or process secreted the child from his mother/
petitioner, did the said Abdiel Caban have custody of
DENISE CABAN in law or fact; that, on January 15,
1975 only upon the petitioner consenting, the Family
Court of the State of New York, County of Kings, al-
lowed, pending a full hearing before it, the cross-
petitioner/putative father, Abdiel Caban, the right to visit
with the said child, DENISE CABAN.
FIFTH: Denies each and every allegation contained in
paragraph of the cross-petition marked and designated
“15” and specifically denies that the petitioner, Maria
Mohammed disappeared with the child, DENISE CABAN.
SIXTH: Denies knowledge and information sufficient to
form a belief as to the truth or falsity of the allegations
SS
26
contained in paragraphs of the cross-petition marked and
designated “13”, "i ys soa “7. — “23”, 6695 : 26
and “27”.
WHEREFORE, the petitioners respectfully pray for an
order dismissing the cross-petition of ABDIEL CABAN,
the reputed father of DENISE CABAN and NINA
CABAN and; the consent of the said ABDIEL CABAN
thereto not being statutorily required, that his objection
to the herein petition for the adoption of DENISE
CABAN be dismissed; that the petition for the adoption
of the said child proceed accordingly and; for such other
and further relief as may recommend itself to the court.
MorRRIS SCHULSLAPER
Attorney for Petitioners,
Kazim and Maria Mohammed
27
IN THE SURROGATE’S COURT
KINGS COUNTY, NEW YORK
File No. 2006-1976
File No. 2007-1976
IN THE MATTER OF THE ADOPTIONS OF
DAVID ANDREW CABAN and DENISE CABAN,
minors under the age of fourteen years by
KAZIM MOHAMMED and MARIA MOHAMMED, his wife
OPINION—August 3, 1976
SOBEL, S.
The stepfather, married since January 1974 to the
natural mother of David (age 7) and Denise (age 5),
petitions for their adoption.
The adoption is opposed by the putative father of the
two children. Although a putative father’s consent to such
an adoption is not a legal necessity, he is entitled to an
opportunity to be heard in opposition to the proposed
stepfather adoption. (Stanley v. Illinois, 405 U.S. 645;
Matter of Malpica-Orsini, 36 N Y 2d 568).
What considerations enter into such a hearing?
When the proposed adoptive parents are both blood
strangers to the adoptive child and the objecting putative
father is himself proposing to adopt, then a modified
“flicker of interest rule” should be applied. (See Matter
of Susan W. v. Talbot, 34 N Y 2d 76, 80.)
However, quite a different situation is presented when
the putative father opposes the adoption by the stepfather
married to the natural mother having custody of the child.
A putative father opposing such an adoption, without the
consent of the natural mother, has himself no prospect of
adopting the child. His motive in opposing the adoption
is therefore an important consideration. As this Court
has noted, too often the continued interest is not in the
28
child but rather in the natural mother and whether such
interest is labelled “love” or “hatred”—it really makes
little difference—the purpose is to preserve in some man-
ner, however oblique, the dissolved former relationship.
Motive however is very difficult for a court to discern for
often the objecting father is not himself consciously aware
of it.
Whatever the motive for the opposition to the adoption,
the consequences are the same—harassment of the natu-
ral mother in her new relationship and embarrassment to
the child who though living with and being supported in
the new family may not in school and elsewhere bear the
family name.
The prime objective of allowing a putative father to
be heard is therefore not to determine the degree of his
continued interest in the child but rather to determine
the best interests of the child. Any evidence the putative
father may offer concerning the solidity of the marriage
and the concern and treatment of the child in the new
family is particularly relevant.
The background facts are therefore only briefly noted.
The natural mother and putative father lived together
from 1968 through 1973. During this period the putative
father was married but separated from his first wife
whom he had married in 1955 and by whom he had two
daughters. During this entire relationship both the natu-
ral mother and the putative father were employed and
contributed to the support of the family.
In January of 1974, the natural mother left the puta-
tive father to marry the petitioner (1/30/74). He was
aware of the former relationship and accepted the two
children.
After the marriage, the putative father continued to
see the two children who frequently visited with the ma-
ternal grandmother with whom he had a good relation-
ship.
In late 1974 or early 1975 the maternal grandmother
moved to Puerto Rico and the two children accompanied
29
her. The natural mother and petitioning stepfather
planned permanently to join the children there after their
own child which she was expecting was born.
The putative father during this period requested and
received permission to visit with the children during his
visits to his own family in Puerto Rico. During one of
these visits, instead of returning the children to the ma-
ternal grandmother, he brought them back with him to
New York, concealing their whereabouts. He did how-
ever consult an attorney who communicated to the natu-
ral mother a proposal that each have custody of one of
the children. From the attorney, the natural mother and
petitioning stepfather obtained the address of the chil-
dren. Their attempts with the aid of the police to regain
custody was frustrated again by the removal of the chil-
dren toa new address. A proceeding in the Family Court
resulted in temporary custody being awarded to the
mother. The hearing has been adjourned pending the out-
come of these adoption proceedings.
The natural mother and the petitioning stepfather have
been married since January 1974. They are both in their
early twenties. They have had a child in 1975. Both are
employed, the natural mother as a secretary earning $200
a week, the petitioning stepfather as a taxi driver earn-
ing $250 a week. The children are not old enough to be
articulate; the oldest is able however to express “love”
for both his “fathers.” The children are obviously well
cared for.
The objecting putative father is 39 years of age. As
noted he was married in 1955 and has two daughters by
his first wife ages 16 and 20, whom he testifies he sup-
ports. He testifies that he has been divorced from his
first wife and has recently remarried a widow with two
children. He is employed by the Telephone Company at
a salary of $268 a week and supports his new wife and
family. He justifies his conduct in removing the children
30
without permission from their lawful custody by his con-
cern for their welfare. His testimony is belied by 7
appearance and credible testimony of the maternal gran I-
mother from whose temporary custody the children were
snatched.
There is absolutely no evidence, credible or otherwise,
that the new marriage of the natural mother is other
than solid or permanent; and no evidence whatsoever that
the children are not well cared for and healthy. Nothing
therefore justifies a denial of the petition other than that
the putative father professes that he loves the children
and fervently desires that they continue to bear his name.
This is not enough however sincerely motivated. ‘
The contention that the natural mother “abandoned
the children by permitting the children to accompany
their grandmother to Puerto Rico is dismissed. Not a
scintilla of evidence supports such contention. The proof
i he contrary. Nae
i The presi of the putative father are dismissed on
the evidence. The stepfather adoption shall proceed ac-
cording to law.
Settle decree. /s/ NATHAN R. SOBEL
Surrogate
Dated: August 3, 1976.
ee et
31
IN THE SURROGATE’S COURT
KINGS COUNTY, NEW YORK
File No. 200007
IN THE MATTER OF THE ADOPTION OF
A minor under the age of fourteen years by
KAZIM MOHAMMED and MARIA MOHAMMED, his wife
ORDER—September 10, 1976
The petition of Kazim Mohammed and Maria Mo
hammed, his wife duly verified the 13th day of January,
1976 for an order approving the adoption of David An-
drew, a minor under the age of fourteen years and di-
recting that the said minor child shall thereafter and
henceforth be treated and regarded in all respects as the
child of the petitioners to be known and called by the
name of David Andrew Mohammed and a citation having
thereupon issued on February 4, 1976 and duly served
upon Abdiel Caban and the said Abdiel Caban having
appeared, by Danzig, Bunks & Silk Abe Bunks, Esq. of
counsel on February 26, 1976 the return date for the
citation and opposing and having thereafter served an
answer verified the 4th day of March 1976 and an affi-
davit duly sworn to by the said Abdiel Caban on the 4th
day of March 1976 objecting to the proposed adoption of
David Andrew, a minor child under the age of fourteen
years, by the petitioners Kazim Mohammed and Maria
Mohammed, his wife and natural mother of the said child,
and the said matter having regularly come on to be heard
before Renee Roth, Esq., a Law Assistant to the Surro-
gate of Kings County on the 22nd day of March, 1976
and the 30th day of April, 1976 and the petitioners Kazim
Mohammed and Maria Mohammed having appeared in
person and by Morris Schulslaper, Esq., their attorney in
support of the petition, and Abdiel Caban in person and
32
by Abe Bunks, Esq., his attorney having appeared in op-
position thereto and David’ Andrew, a minor under the
age of fourteen years having been produced before the
court and the said parties having been examined and a
hearing having been had and testimeny having been taken
with respect to the issues herein involved and more par-
ticularly with respect to the alleged abandonment of
David Andrew, a minor under the age of fourteen years,
by Maria Mohammed, his natural mother and after hear-
ing the petitioners, Kazim Mohammed, Maria Mohammed
and their attorney, Morris Schulslaper, Esq., in support
of the petition and after hearing Abdiel Caban and Abe
Bunks, Esq., his attorney, in opposition to the petition
and an investigation having been duly ordered to verify
the truth of the allegation set forth in the petition, the
instrument or agreement of adoption and other papers in
the proceeding and such other facts relating to the said
infant, David Andrew and to the adoptive parent as would
give me full knowledge as to the desirability of approving
the said adoption and the investigator having reported
that the facts and conditions as set forth in the petition,
the instrument or agreement of adoption and other papers
in this proceeding are true and are fully stated, and fur-
ther that in her opinion the adoption of said minor, David
Andrew, as prayed for in the petition would be in the
best interests of said minor; and due deliberation having
been had and a decision of this court having been ren-
dered and filed with this court on August 3, 1976;
IT appearing to my satisfaction that the moral and
temporal interests of David Andrew, an infant under the
age of fourteen years will be promoted by granting the
petition of the said Kazim Mohammed and Maria Mo-
hammed, his wife and approving the proposed adoption;
and it appearing to my satisfaction that there is no rea-
sonable objection to the change of name proposed,
NOW, on motion of Morris Schulslaper, Esq., attorney
for the petitioners;
ORDERED, ADJUDGED and DECREED, that the
contention that the natural mother, Maria Mohammed
abandoned the child David Andrew besring not a scintilla
ee ee A A nt A AO ay
_—
33
of evidence to support such contention, and the proof be-
ing to the contr ce + OE
furthne- ary, be and now is, dismissed, and it is
ORDERED, ADJUDGED and DECREED, that Abdiel
Caban having been accorded a full hearing, his objection
to the proposed adoption of David Andrew, an infant
under the age of fourteen years, by Kazim Mohammed
and Maria Mohammed, his wife and the natural mother
of the minor child be, and on the evi
° ’ e .
missed, and it is further; evidence, is now dis-
ORDERED, ADJUDGED and DE
petition of Kazim Mohammed and Maria aes hie
wife for the adoption of said minor, David Andrew born
on the 16th day of July 1969 in New York, New York
be and the same is hereby granted and that such adoption
and the agreement therefore submitted upon this appli-
cation be and th i :
ind this: e same is hereby in all respects approved
Further Ordered, that the minor, Davi
, , David And
be henceforth regarded and treated in all aauaie Qs
child of the said Kazim Mohammed and Maria Mo-
hammed, his wife and be kn
David Andrew Mohammed. own and called by the name
/8/ Nathan R. Sobel
NATHAN R. SoBEL
Surrogate
34
IN THE SURROGATE’S COURT
KINGS COUNTY, NEW YORK
File No. 200006
IN THE MATTER OF THE ADOPTION OF
DENISE CABAN ’
i teen years by
A minor under the age of four fe
KAzIM MOHAMMED and MARIA MOHAMMED, his wife
ORDER—September 10, 1976
ition of Kazim Mohammed and Maria Mo-
sina ae wife duly verified the 13th day of January,
1976 for an order approving the adoption of sang Bi
minor under the age of fourteen years and directing : -
the said minor child shall thereafter and ginny gh fo
treated and regarded in all respects as the child Ms he
petitioners to be known and called by the naine of apa
Mohammed and a citation having thereupon issue -
February 4, 1976 and duly served upon Abdiel ae "8
the said Abdiel Caban having appeared, by Danzig, —
& Silk Abe Bunks, Esq., of counsel on February 26,
the return date for the citation and opposing and r+ Shem
thereafter served an answer verified the 4th day of ree hae
1976 and an affidavit duly sworn to by the said Abdie
Caban on the 4th day of March 1976 objecting to the on
posed adoption of David Andrew, a minor child under the
age of fourteen years, by the petitioners Kazim =
hammed and Maria Mohammed, his wife and natura
mother of the said child, and the said matter having regu-
larly come on to be heard before Renee Roth, Esq., a a
Assistant to the Surrogate of Kings County on the 22n
day of March, 1976 and the 30th day of April, 1976 —
the petitioners Kazim Mohammed and Maria Mohamme
having appeared in person and by Morris Schulslaper,
Esq., their attorney in support of the petition, and Abdiei
35
Caban in person and by Abe Bunks, Esq., his attorney
having appeared in opposition thereto and Denise, a minor
under the age of fourteen years having been produced
before the court and the said parties having been exam-
ined and a hearing having been had and testimony hav-
ing been taken with respect to the issues herein involved
and more particularly with respect to the alleged aban-
donment of Denise, a minor under the age of fourteen
years, by Maria Mohammed, her natural mother and
after hearing the petitioners, Kazim Mohammed, Maria
Mohammed and their attorney, Morris Schulslaper Esq.,
in support of the petition and after hearing Abdiel Caban
and Abe Bunks, Esq., his attorney, in opposition to the
petition and an investigation having been duly ordered
to verify the truth ordered to verify the truth of the alle-
gation set forth in the petition, the instrument or agree-
ment or agreement of adoption and other papers in the
proceeding and such other facts relating to the said in-
fant, Denise and to the adoptive parent as would give me
full knowledge as to the desirability of approving the said
adoption and the investigator having reported that the
facts and conditions as set forth in the petition, the in-
strument or agreement of adoption and other papers in
this proceeding are true and are fully stated, and further
that in her opinion the adoption of said minor, Denise,
as prayed for in the petition would be in the best inter-
ests of said minor; and due deliberation having been had
and a decision of this court having been rendered and
filed with this court on August 3, 1976;
IT appearing to my satisfaction that the moral and
temporal interests of Denise, an infant under the age of
fourteen years will be promoted by granting the petition
of the said Kazim Mohammed and Maria Mohammed, his
wife and approving the proposed adoption; and it appear-
ing to my satisfaction that there is no reasonable objec-
tion to the change of name proposed,
NOW, on motion of Morris Schulslaper, Esgq., attorney
for the petitioners;
ORDERED, ADJUDGED and DECREED, that the
contention that the natural mother, Maria Mohammed
36
i i i intilla of evi-
ndoned the child Denise bearing not a scin
rea to support such contention and the proof being to
the contrary, be and now is, dismissed, and it is further;
ERED, ADJUDGED and DECREED, that Abdiel
Pg having been accorded a full hearing, his a
to the proposed adoption of Denise, an infant under the
age of fourteen years, by Kazim Mohammed and Maria
Mohammed, his wife and the natural mother of the minor
child be, and on the evidence, is now dismissed, and it is
further;
ERED, ADJUDGED and DECREED, that the
a of Kazim Mohammed and Maria Mohammed, his
wife for the adoption of said minor, Denise born on the
12th day of March 1971 in Brooklyn, New York be and
the same is hereby granted and that such adoption and
the agreement therefore submitted upon this application
be and the same is hereby in all respects approved and
it is;
her Ordered, that the minor, Denise shall be hence-
ui ee and treated in all respects as the child of
the said Kazim Mohammed and Maria Mohammed, his
wife and be known and called by the name Denise Mo-
ey /s/ Nathan R. Sobel
NATHAN R. SOBEL
Surrogate
37
IN THE SURROGATE’S COURT
KINGS COUNTY, NEW YORK
File No, 20007 1976
IN THE MATTER OF THE ADOPTION OF
DAviID ANDREW CABAN
a minor under the age of fourteen years by
KAZIM MOHAMMED and MARIA MOHAMMED, his wife
ORDER APPROVING ADOPTION—September 10, 1976
On the petition of KAZIM MOHAMMED and MARIA
MOHAMMED, his wife, adults, duly verified the 13th
day of January 1976, and duly reverified before me the
day of Sep. 10, 1976, and the affidavits of MORRIS
SCHULSLAPER, ESQ. duly sworn to before me the day
of Sep. 10, 1976, and the above named parties having
severally appeared before me together with DAVID AN-
DREW CABAN, a minor under the age of fourteen years,
and said parties constituting all the parties required to
appear before me pursuant to the provisions of an Act
relating to the domestic relations, constituting chapter
fourteen of the Consolidated Laws, as amended, and said
parties having been examined by me, as required by said:
law, and said parties having presented to me an instru-
ment containing substantially the consents required by
said law, an agreement on the part of the adoptive par-
ents to adopt and treat the minor as their own lawful
child, and a statement of the date and place of birth of
the person to be adopted, as nearly as the same can be
ascertained, the religious faith of the parents and of the
child, the manner in which the adoptive parents obtained
the child, and said instrument having been duly signed,
verified and acknowledged as required by law by each
person whose consent is necessary to the adoption.
And Narcissus Frett, having been specifically designated
by me to make an investigation to verify the truth of
38
the allegations set forth in the petition, the instrument or
agreement of adoption and other papers in this proceeding
and such other facts relating to the said infant DAVID
ANDREW CABAN and to the adoptive parents as would
give me full knowledge as to the desirability of approving
said adoption, and the said investigator, Narcissus Frett,
having made her report in writing dated 5/28, 1976 and
the same having been filed in this Court; and said inves-
tigator having reported that the facts and conditions as
set forth in the petition, the instrument or agreement of
adoption and other papers in this proceeding are true and
are fairly stated, and further reporting that in her opin-
ion the adoption of said minor DAVID ANDREW CA-
BAN, as prayed for in the petition herein would be for
the best interests of said minor;
And it appearing to my satisfaction that the moral and
temporal interests of the said minor DAVID ANDREW
CABAN will be promoted by granting the petition of said
KAZIM MOHAMMED and MARIA MOHAMMED, his
wife, and approving the proposed adoption; and it appear-
ing to my satisfaction that there is no reasonable objec-
tion to the change of name proposed, DAVID ANDREW
MOHAMMED
NOW, ON MOTION OF MORRIS SCHULSLAPER,
ESQ. Attorney for the petitioners herein, it is
ORDERED, that the petition of KAZIM MOHAMMED
and MARIA MOHAMMED, his wife, for the adoption of
said minor born on the 16th day of July, 1969 in New
York, New York be and the same hereby is granted and
that such adoption and the agreement therefor submitted
upon this application be and the same hereby are in all
respects approved and it is
FURTHER ORDERED, that the minor, DAVID AN-
DREW CABAN, shall be henceforth regarded and treated
in all respects as the child of said KAZIM MOHAMMED
and MARIA MOHAMMED his wife, and be known and
called by the name of DAVID ANDREW MOHAMMED.
/8/ NATHAN R. SOBEL
Surrogate
ST PET tat Hi
ns we
ta RE
39
IN THE SURROGATE’S COURT
KINGS COUNTY, NEW YORK
File No. 20006 1976
IN THE MATTER OF THE ADOPTION OF
DENISE CABAN
a minor under the age of fourteen years by
KAZIM MOHAMMED and MARIA MOHAMMED, his wife
ORDER APPROVING ADOPTION. —September 10, 1976
On the petition of KAZIM MOHAMMED and MARIA
MOHAMMED, his wife, adults, duly verified the 13th
day of January, 1976, and duly reverified before me the
day of Sep. 10, 1976, and the affidavits of MORRIS
SCHULSLAPER, ESQ. duly sworn to before me the day
of Sep. 10, 1976, and the above named parties having
severally appeared before me together with DENISE
CABAN, a minor under the age of fourteen years, and
said parties constituting all the parties required to appear
before me pursuant to the provisions of an Act relating
to the domestic relations, constituting chapter fourteen
of the Consolidated Laws, as amended, and said parties
having been examined by me, as required by said law, an
agreement on the part of the adoptive parents to adopt
and treat the minor as their own lawful child, and a
statement of the date and place of birth of the person to
be adopted, as nearly as the same can be ascertained, the
religious faith of the parents and of the child, the manner
in which the adoptive parents obtained the child, and said
instrument having been duly signed, verified and acknowl-
edged as required by law by each person whose consent
1s necessary to the adoption.
And Narcissus Frett, having been specifically desig-
nated by me to make an investigation to verify the truth
of the allegations set forth in the petition, the instrument
40
or agreement of adoption and other papers in this pro-
ceeding and such other facts relating to the said infant
DENISE CABAN and to the adoptive parents as would
give me full knowledge as to the desirability of approving
said adoption, and the said investigator, Narcissus Frett,
having made her report in writing dated 5/28, 1976 and
the same having been filed in this Court; and said inves-
tigator having reported that the facts and conditions as
set forth in the petition, the instrument or agreement of
adoption and other papers in this proceeding are true and
are fairly stated, and further reporting that in her opin-
ion the adoption of said minor DENISE CABAN, as
prayed for in the petition herein would be for the best
interests of said minor;
And it appearing to my satisfaction that the moral and
temporal interests of the minor DENISE CABAN will be
promoted by granting the petition of said KAZIM MO-
HAMMED and MARIA MOHAMMED, his wife, and
approving the proposed adoption; and it appearing to my
satisfaction that there is no reasonable objection to the
change of name proposed,
NOW, ON MOTION OF MORRIS SCHULSLAPER,
ESQ. Attorney for the petitioners herein, it is
ORDERED. that the petition of KAZIM MOHAMMED
and MARIA MOHAMMED, his wife, for the adoption of
said minor born on the 12th day of March, 1971 in Brook-
lyn, New York be and the same hereby is granted and
that such adoption and the agreement therefor submitted
upon this application be and the same hereby are in all
respects approved and it is
FURTHER ORDERED, that the minor, DENISE
CABAN, shall be henceforth regarded and treated in all
respects as the child of said KAZIM MOHAMMED and
MARIA MOHAMMED, his wife, and be known and called
by the name of DENISE MOHAMMED.
/s/ NATHAN R. SoBEL
Surrogate
OE EI ae mt
41
IN THE SUPREME COURT
OF THE STATE OF NEW YORK
APPELLATE DIVISION
SECOND JUDICIAL DEPARTMENT
— AD 2d—— A—February 1, 1977
181 E IN THE MATTER OF DAVID ANDREW C.
= 7 (ANONYMOUS).
182 AE KAziIM M. (ANONYMOUS) ET AL.,
RESPONDENTS; ABDIEL C. (ANONYMOUS),
APPELLANT.
IN THE MATTER OF DENISE C. (ANONYMOUS).
Kazim M. (ANONYMoUS) ET AL.,
RESPONDENTS; ABDIEL C. (ANONYMOUs),
APPELLANT.
Danzig, Bunks & Silk, New York, N.Y. (Robert H. Silk
and Abe Bunks of counsel), for appellant.
Morris Schulslaper, Brooklyn, N.Y., for respondents.
MEMORANDUM OPINION—Filed February 22, 1977
In two adoption proceedings, the putative father of the
children appeals from four orders of the Surrogate’s
Court, Kings County, all dated September 10, 1976, and
made after a hearing, two of which, inter alia, dismissed
his objections to the respective adoptions and two of which
approved the respective adoptions.
Orders affirmed, with one bill of costs to respondents.
Appellant contends that section 111 of the Domestic Rela-
tions Law is unconstitutional insofar as it denies to the
putative father of a child born out of wedlock the same
rights as to the approval of a proposed adoption as are
enjoyed by the child’s mother and by the father of a child
a i ee
42
born in wedlock. That very claim was found to be with-
out merit in Matter of Malpica-Orsini (36 NY2d 568,
app. dsmd. sub nom. Orsini v Blasi, 423 US 1042).
RABIN, Acting P.J., SHAPIRO, TITONE and O’CoNNOR, JJ.,
concur.
February 22, 1977
IN RE C., DAVID and DENISE 181 E
(ANONYMOUS), M., KAzIM (ANONYMOUS); 181 AE
C., ABDIEL (ANONYMOUS). 182 E
182 AE
Ce i ORE ee eae
re IU™ Moke
43
IN THE SUPREME COURT
OF THE STATE OF NEW YORK
APPELLATE DIVISION
SECOND JUDICIAL DEPARTMENT
HON. SAMUEL RaBIN, Acting Presiding Justice
Hon. J. IRWIN SHAPIRO,
Hon. Vito J. TIToNE,
Hon. FRANK D. O’CONNOR,
Associate Justices
IN THE MATTER OF DAVID ANDREW C. (ANONYMOUS).
KAzZIM M. (ANONYMOUS) ET AL., RESPONDENTS;
ABDIEL C. (ANONYMOUS), APPELLANT.
IN THE MATTER OF DENISE C. (ANONYMOUS).
Kazim M. (ANONYMOUS) ET AL., RESPONDENTS;
ABDIEL C. (ANONYMOUS ), APPELLANT.
ORDER ON APPEALS FROM ORDERS—
February 22, 1977
In the above entitled causes, the above named Abdiel
C. (anonymous), putative father and respondent in the
court below, having appealed to this court from four
orders of the Surrogate’s Court, Kings County, all dated
September 10, 1976, and made after a hearing, two of
which, inter alia, dismissed his objections to the respec-
tive adoptions and two of which approved the respective
adoptions; and the said appeals having been argued by
Robert H. Silk, Esq., of counsel for the appellant and
argued by Morris Schulslaper, Esq., of counsel for the
respondents, due deliberation having been had thereon;
44
and upon this court’s opinion and decis.vn slip heretofore
filed and made a part hereof, it is
ORDERED that the orders appealed from are hereby
unanimously affirmed, with one bill of costs to respond-
ents.
Enter:
/s/ IRVING N. SELKIN
Clerk of the Appellate
Division
45
IN THE COURT OF APPEALS
OF THE STATE OF NEW YORK
IN THE MATTER OF THE ADOPTION OF
Davip A. C. (ANONYMOUS).
KAZIM M. ET AL., RESPONDENTS;
ABDIEL C., APPELLANT.
IN THE MATTER OF THE ADOPTION OF
DENISE C. (ANONYMOUS).
KAzZIM M. ET AL., RESPONDENTS;
ABDIEL C., APPELLANT.
Argued October 13, 1977; decided November 17, 1977
MEMORANDUM
Appeal dismissed, with costs. The purportedly direct
and dispositive constitutional issues underlying this appeal
are no more than a restatement of questions whose merit
has been clearly resolved against appellant’s position
(Matter of Malpica-Orsini, 36 NY2d 568, app dsmd sub
nom. Orsini v Blasi, 423 US 1042), and must be held to
lack the degree of substantiality necessary to sustain this
appeal as of right under CPLR 5601 (subd [b], par 1)
(Tabankin v Codd, 40 NY2d 893; People ex rel. Uviller
v Luger, 38 NY2d 854; see NY Const, art VI, § 3, subd
b). Accordingly, it must be dismissed ( Cohen and Kar-
ger, Powers of the New York Court of Appeals, § 55,
p. 254).
Chief Judge BREITEL and Judges JASEN, GABRIELLI,
JONES, WACHTLER, FUCHSBERG and COOKE coneur in
memorandum.
Appeal dismissed.
46
IN THE COURT OF APPEALS
OF THE STATE OF NEW YORK
The Hon. Charles D. Breitel, Chief Judge, Presiding
2 No. 561
IN THE MATTER OF DAVID ANDREW C. ( ANONYMOUS).
KAzZIM (ANONYMOUS) &ano., RESPONDENTS.
ABDIEL C. (ANONYMOUS), APPELLANT.
IN THE MATTER OF DENISE C. (ANONYMOUS).
KAZIM (ANONYMOUS) &ano., RESPONDENTS.
ABDIEL C. (ANONYMOUS), APPELLANT.
Morris Schulslaper.
JUDGMENT AND REMITTITUR—
Filed November 17, 1977
The appellant(s) in the above entitled appeal appeared
by Danzig, Bunks & Silk; the respondent (s) appeared by
The Court, after due deliberation, orders and adjudges
that the appeal is dismissed, with costs, in a memoran-
dum.
The Court further orders that the papers required to
be filed and this record of the proceedings in this Court
be remitted to the Surrogate’s Court, Kings County, there
to be proceeded upon according to law.
SO RE Oe OA ee
47
I certify that the preceding contains a correct record
of the proceedings in this appeal in the Court of Appeals
and that the papers required to be filed are attached.
/s/ Joseph W. Bellacosa
JOSEPH W. BELLACOSA
Clerk of the Court
Court of Appeals, Clerk’s Office, Albany,
November 17, 1977.
48
IN THE COURT OF APPEALS
STATE OF NEW YORK
Present, Hon. Charles D. Breitel, Chief Judge, Presiding.
Mo. No. 1148
IN THE MATTER OF THE ADOPTION OF
DAVID ANDREW C. (ANONYMOUS), a Minor &c., by
KAZIM (ANONYMOUS) ET AL., RESPONDENTS,
ABDIEL C. (ANONYMOUS), APPELLANT.
IN THE MATTER OF THE ADOPTION OF
DENISE C. (ANONYMOUS), a Minor &c., by
KAZIM (ANONYMOUS) ET AL., RESPONDENTS,
ABDIEL C. (ANONYMOUS), APPELLANT.
ORDER DENYING MOTION FOR REARGUMENT—
January 10, 1978
A motion for reargument in the above cause having
heretofore been made upon the part of the appellant here-
in and papers having been submitted thereon and due
deliberation having been thereupon had, it is
ORDERED, that the said motion be and the same here-
by is denied.
/s/ Joseph W. Bellacosa
JOSEPH W. BELLACOSA
Clerk of the Court
Pie SAK Wi aviahnde
ee ee
49
IN THE COURT OF APPEALS
STATE OF NEW YORK
Present, Hon. Charles D. Breitel, Chief Judge, Presiding.
Mo. No. 111
IN THE MATTER OF THE ADOPTION OF
DAVID ANDREW C. (ANONYMOUS), a Minor &c., by
KAZIM (ANONYMOUS) ET AL., RESPONDENTS,
ABDIEL C. (ANONYMOUS), APPELLANT.
IN THE MATTER OF THE ADOPTION OF
DENISE C. (ANONYMOUS), a Minor &c., by
KAZIM (ANONYMOUS) E¥ AL., RESPONDENTS,
ABDIEL C. (ANONYMOUS), APPELLANT.
ORDER DENYING MOTION FOR REARGUMENT—
February 14, 1978
A motion for reargument in the above cause having
heretofore been made upon the part of the appellant and
papers having been submitted thereon and due delibera-
tion having been thereupon had, it is
ORDERED, that the said motion be and the same here-
by is denied.
/s/ Joseph W. Bellacosa
JOSEPH W. BELLACOSA
Clerk of the Court
50
SUPREME COURT OF THE UNITED STATES
No. 77-6431
ABDIEL CABAN, APPELLANT
Vv.
KAZIM MOHAMMED and MARIA MOHAMMED
ON CONSIDERATION of the motion of appellant for
leave to proceed herein in forma pauperis,
IT IS ORDERED by this Court that the said motion
be, and the same is hereby, granted.
May 15, 1978
ee a
51
SUPREME COURT OF THE UNITED STATES
No. 77-6431
ABDIEL CABAN, APPELLANT
Vv.
KAZIM MOHAMMED and MARIA MOHAMMED
APPEAL from the Court of Appeals of New York.
The statement of jurisdiction in this case having been
submitted and considered by the Court, probable jurisdic-
tion is noted.
May 15, 1978
wus. GOVERNMENT PRINTING OFFICE; 1978 266618 38
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.