In order for your Fiance to adopt your child, the father must either agree to give up his parental rights in writing or a basis must be established that would justify terminating the father’s parental rights. Under New York Statute, the court is authorized to terminate parental rights where there is a showing the parent abandoned the child. Other justifications include permanent neglect, mental illness, or upon a finding of a significant intellectual disability.
Based on the facts that you have described, it appears the father will not agree in writing to give up his parental rights and the only possible basis is abandonment.
Under New York law, a child is “abandoned” by his parent if the parent demonstrates an intent to give up his parental rights. This intent may be shown by the parent failing to visit the child and communicate with the child. The intent is particularly present where the parent has the ability to visit and communicate with the child but decides not to do so. However, unless the father provides evidence that he is not able to communicate with the child, the court will assume he is capable of doing so but chooses not to.
Based on the facts you have described, it is difficult to say whether or not there is enough to justify a finding that the father abandoned the child. Does he still speak with the child over the phone? How often does he? What are the reasons he has been unable to make the visits? All of these questions and many others are relevant to the determination. I suggest you consult an attorney who can provide you with sound legal advice based on the facts of your case. Because I do not have all of the necessary information, this certainly is not legal advice and should not be relied on as legal advice.