Opinion 93-19
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This
opinion represents the views of the Office of the State
Comptroller at the time it was rendered. The opinion may no
longer represent those views if, among other things, there have
been subsequent court cases or statutory amendments that bear on
the issues discussed in the opinion. |
COURTS -- Surrogate's Court (fees for certificate of adoption
or certified copies of orders of adoption)
FEES -- Court Fees (fees for certificate of adoption or
certified copies of orders of adoption)
SURROGATE'S COURT PROCEDURE ACT, §2402: A Surrogate's Court
may not charge a fee for certificates of adoption or for
certified copies of orders of adoption.
This is in reply to your correspondence in which you
requested our opinion regarding whether a fee should be charged
for certificates of adoption or certified copies of the order
of adoption in Surrogate's Courts.
You state in your letter that while section 2402 of the
Surrogate's Court Procedure Act (SCPA) sets forth the fees
chargeable in proceedings in Surrogate's Court, there is no fee
for the filing of a petition for adoption, nor does the nature
of such a proceeding engender any other filing fees. This is
consistent with the practice in Family Court, which has
concurrent jurisdiction over adoptions and in which no fees are
charged. Subdivision 13 of section 2402 of the SCPA, however,
provides for a general $5.00 per page fee for certifying a copy
of any papers on file in the clerk's office. The Surrogate's
Courts are divided in practice as to how SCPA, §2402(13) should
be applied to certificates of adoption or certified copies of
orders of adoption. Some courts charge a fee while others
charge no fee, either analogizing such requests to Family Court
practice, where no fees are charged in any proceeding, or
applying subdivision 17(g) of section 2402 of the SCPA and
treating these requests as orders concerning the proper needs
of an infant for which no fees are charged.
Paragraph (f) of subdivision 10 of section 2402 of the
SCPA, as originally adopted by chapter 953 of the Laws of 1966,
provided for a $5.00 fee for a petition for adoption, including
the recording of any decree made by the court in that
proceeding which is required by law to be recorded and the
recording of any letters required by law to be recorded. By
section 42 of chapter 259 of the Laws of 1968, paragraph (f)
was amended so that the $5.00 fee on a petition for adoption
included one certified copy of the order of adoption and any
necessary certificates. However, paragraph (f) was then
repealed by section 3 of chapter 626 of the Laws of 1969
eliminating these fees regarding adoptions. The note at the
end of that amendment stated that the purpose was to provide
the same fee in proceedings of the same nature and that the
elimination of the filing fees in adoptions was in accord with
the efforts of the Judicial Conference to attain uniformity in practice and procedure between courts
having concurrent jurisdiction (see Semerad, Supplementary
Practice Commentaries, McKinney's Cons Laws of NY, Book 58A,
SCPA, §2402, p 137).
Thus, it would appear that the legislative history of
section 2402 reflects a legislative intent that the prior fee
be eliminated in order to create a common practice between
adoption cases in Surrogates Court and Family Court. As a
result, it is our opinion that no fees are authorized to be
charged by a Surrogate's Court for certificate of adoption or
for certified copies of orders of adoption.
April 20, 1993
Michael Colodner, Esq., Counsel
Unified Court System
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