(a) It shall be the duty of the town or city clerk when an application for a marriage license is made to him or her to require each of the contracting parties to sign and verify a statement or affidavit before such clerk or one of his or her deputies, containing the following information. From party one: Full name, place of residence, social security number, age, occupation, place of birth, name of father, country of birth, maiden name of mother, country of birth, number of marriage. From party two: Full name, place of residence, social security number, age, occupation, place of birth, name of father, country of birth, maiden name of mother, country of birth, number of marriage. Both parties shall also be required to present to the clerk documentary proof of age in the form of an original or certified copy of a birth record, a certification of birth issued by the state department of health, a local registrar of vital statistics or other public officer charged with similar duties by the laws of any other state, territory or country, a baptismal record, a passport, an automobile driver’s license, any government or school issued identification card that contains a photograph of the applicant, a life insurance policy, an employment certificate, a school record, an immigration record, a naturalization record, a court record or any other document or record issued by a governmental entity, showing the date of birth of such parties. The said clerk shall also embody in the statement if either or both of the applicants have been previously married, a statement as to whether the former spouse or spouses of the respective applicants are living or dead and as to whether either or both of said applicants are divorced persons, if so, when and where and against whom the divorce or divorces were granted and shall also embody therein a statement that no legal impediment exists as to the right of each of the applicants to enter into the marriage state. The town or city clerk is hereby given full power and authority to administer oaths and may require the applicants to produce witnesses to identify them or either of them and may examine under oath or otherwise other witnesses as to any material inquiry pertaining to the issuing of the license, and if the applicant is a divorced person the clerk may also require the production of a certified copy of the decree of the divorce, or proof of an existing marriage of parties who apply for a license to be used for a second or subsequent ceremony; provided, however, that in cities or towns the verified statements and affidavits may be made before any regular clerk or designee of the clerk’s office.
(b) Every application for a marriage license shall contain a statement to the following effect:
NOTICE TO APPLICANTS
(1) Every person has the right to adopt any name by which he or she wishes to be known simply by using that name consistently and without intent to defraud.
(2) A person’s last name (surname) does not automatically change upon marriage, and neither party to the marriage must change his or her last name. Parties to a marriage need not have the same last name.
(3) One or both parties to a marriage may elect to change the surname by which he or she wishes to be known after the solemnization of the marriage by entering the new name in the space below. Such entry shall consist of one of the following surnames:
(i) the surname of the other spouse; or
(ii) any former surname of either spouse; or
(iii) a name combining into a single surname all or a segment of the premarriage surname or any former surname of each spouse; or
(iv) a combination name separated by a hyphen or space, provided that each part of such combination surname is the premarriage surname, or any former surname, of each of the spouses.
(4) One or both parties to a marriage may elect to change the middle name by which he or she wishes to be known after the solemnization of the marriage by entering the new name in the space below. Such entry shall consist of one of the following options:
(i) the current surname of the spouse electing to change his or her name; or
(ii) any former surname of the spouse electing to change his or her name; or
(iii) the surname of the other spouse.
(5) The use of this option will have the effect of providing a record of the change of name. The marriage certificate, containing the new name, if any, constitutes proof that the use of the new name, or the retention of the former name, is lawful.
(6) Neither the use of, nor the failure to use, this option of selecting a new surname or middle name by means of this application abrogates the right of each person to adopt a different name through usage at some future date.
(Optional — Enter new surname above)
2. If it appears from the affidavits and statements so taken, and from the documentary proof of age presented, that the persons for whose marriage the license in question is demanded are legally competent to marry, the said clerk shall issue such license.
4. Before issuing any licenses herein provided for, the town or city clerk shall be entitled to a fee of thirty dollars, which sum shall be paid by the applicants before or at the time the license is issued; provided, however, that when either of the parties applying for such license is a member of the armed forces of the United States on active duty (i) a town or city may not collect that portion of the fee which would otherwise be transmitted to the state commissioner of health pursuant to this subdivision and (ii) such town or city may elect to waive the portion of the fee which the town or city is entitled to. Any town or city clerk who shall issue a license to marry any persons one or both of whom shall not be at the time of the marriage under such license legally competent to marry without first requiring the parties to such marriage to make such affidavits and statements or who shall not require the production of documentary proof of age or the procuring of the approval and consents provided for by this article, which shall show that the parties authorized by said license to be married are legally competent to marry, shall be guilty of a misdemeanor and on conviction thereof shall be fined in the sum of one hundred dollars for each and every offense. On or before the fifteenth day of each month, each town and city clerk, except in the city of New York, shall transmit to the state commissioner of health twenty-two dollars and fifty cents of the amount received for each fee collected, which shall be paid into the vital records management account as provided by section ninety-seven-cccc of the state finance law; provided, however, that no fee shall be collected on behalf of or paid to the commissioner of health when either of the parties applying for such license is a member of the armed forces of the United States on active duty. In any city the balance of all fees collected for the issuing of a marriage license, or for solemnizing a marriage, so far as collected for services rendered by any officer or employee of such city, shall be paid monthly into the city treasury and may by ordinance be credited to any fund therein designated, and said ordinance, when duly enacted, shall have the force of law in such city. Notwithstanding any other provisions of this article, the clerk of any city with the approval of the governing body of such city is hereby authorized to designate, in writing filed in the city clerk’s office, a deputy clerk, if any, and/or other city employees in such office to receive applications for, examine applications, investigate and issue marriage licenses in the absence or inability of the clerk of said city to act, and said deputy and/or employees so designated are hereby vested with all the powers and duties of said city clerk relative thereto. Such deputy and/or employees shall perform said duties without additional compensation.
5. Notwithstanding any other provision of this section, the city clerk of the city of New York, before issuing any licenses herein provided for, shall be entitled to a fee of twenty-five dollars, which sum shall be paid by the applicants before or at the time the license is issued and all such fees so received shall be paid monthly into the city treasury.
Bennett v. Jeffreys, 40 N.Y.2d 543, 550-51, 387 N.Y.S.2d 821, 828, 356 N.E.2d 277, 284 (1976)
In reaching its conclusion that the child should remain with the nonparent custodian, the Family Court relied primarily upon the seven-year period of custody by the nonparent and evidently on the related testimony of a psychologist.
The court did not, however, adequately examine into the nonparent custodian’s qualifications and background. Also, the court apparently failed to consider the fact that, absent a finding of abandonment or neglect by the mother, or her consent, the nonparent cannot adopt the child (see Matter of Anonymous [St. Christopher’s Home], 40 NY2d 96, 101-102, supra).
Family Court’s disposition, if sustained, would therefore have left the child in legal limbo, her status indefinite until the attainment of her majority. For a single example, a question could arise as to whose consent, the parent’s or the nonparent custodian’s, would be necessary for the child to marry while underage (see Domestic Relations Law, § 15, subd 2 [consent of “parent” or “guardian” required]).
A similar question could arise with respect to many situations affecting employment and entry into occupations, an adoption, and any other matters requiring the consent of a parent or legal guardian (e.g., General Obligations Law, § 3-105, subd 2, par c; Education Law, § 3230, subd 3, par b; Domestic Relations Law, § 111, subds 2-3).