In In Re Estate of Ball 807 N.Y.S. 2d 163 (A. D. 3 Dept 2005) New York’s Appellate Division, Third Department has reversed a Tompkins County Surrogate holding which dismissed a father’s application for an intestate share of his infant son’s estate after the child died in daycare. The decedent was a non-marital child whose parents both applied for limited letters of administration to commence a wrongful death action. The father’s petition was dismissed upon the mother’s claim that he had abandoned and had failed to support the child.

New York’s Estate Powers and Trusts Law Section 4-1.4(a) provides that a parent may be disqualified if that parent “neglect (ed) or refus(ed) to fulfill the natural and legal obligations of training, care and guidance owed by a parent to a child”. In this action, however it was determined that the child’s mother requested that the father stay away and that she further failed to list him as the child’s father on the birth certificate. It was further shown that once the father was proven to be the father of the decedent, he not only made support payments but also made at least eight phone calls to try to schedule visitation which the mother refused to allow. The Appellate Division failed to find that the father had abandoned his child and further noted that there was evidence of continued efforts on his part to establish his legal rights to the infant.