Opinion 93-19


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 The opinion may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in the opinion.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