Articles Posted in Child custody & visitation

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family-timeAs previously discussed on this blog, New York’s highest court recently issued the landmark New York child custody decision Matter of Brooke S.B., which expanded the definition of a “parent” under Section 70 of the New York Domestic Relations Law. The court ruled that a same-sex partner of a child’s biological parent could be considered a “parent,” if the parties agreed to share child-raising responsibilities. Following that ruling, a New York court decided Gunn v. Hamilton, which applied Matter of Brooke S.B. to determine custody of a same-sex couple’s adopted child.

The parties’ relationship began in 2007 and ended in 2009. During the course of their relationship, they planned to adopt and raise a child together. However, before they could adopt a child, the relationship deteriorated. In fact, the parties memorialized the breakup with a separation agreement, which was finalized in May 2010.

In the next year, the respondent moved forward with the adoption process and finalized the adoption in August 2011. When the respondent and her adopted child returned to New York, the petitioner became involved in the child’s life. The parties never entered into a formal custody sharing agreement, and when the respondent decided to move from New York to England, the petitioner filed a lawsuit for joint custody, the setting of a visitation schedule, and ancillary relief.

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cake on tableIn a recent opinion, a New York court considered whether the dismissal of a petition alleging that two guardians of a minor engaged in neglect and corporal punishment was appropriate.

In October 2016, the Administration of Child Services (ACS) initiated an Article 10 proceeding on behalf of a minor against her paternal uncle and grandmother. Under New York law, all matters involving neglect are governed by Article 10 and heard exclusively in Family Court. The petition alleged that the grandmother and uncle were charged with overseeing the child’s care pursuant to the Family Court Act and that the defendants failed to meet their duty. The petition also alleged that the defendants engaged in neglect and inflicted corporal punishment on the minor. More specifically, the petition stated that the grandmother commanded the uncle to strike the minor four times after the child allegedly touched a cake. The petition claimed that the child’s legs showed marks and bruising. Ultimately, the defendants admitted that they no longer wished to care for the minor or to have her in their home.

The defendants denied the allegations during an appearance in court. The minor was ultimately remanded to the care of the commissioner. During another conference that took place in January 2017, the attorney for ACS stated that the defendants would undergo classes on parenting skills and be allowed to undertake supervised visits with the minor. The uncle rejected this plan, indicating that he did not intend to serve in a parental role regarding the minor. The grandmother also rejected the plan, wishing to terminate her relationship with the child.

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parent and childUnder New York law, both of a child’s parents have rights regarding custody and visitation, as well as obligations regarding support. As the legal landscape regarding marriage changes and evolves, the definition of “parent” has also evolved. More than 20 years ago, the New York Court of Appeals held in Alison D. v. Virginia M. that only biological or adoptive parents have standing to petition for visitation. In the summer of 2016, the court overturned this precedent in Matter of Brooke S.B., allowing the former same-sex partner of a child’s biological mother to petition for visitation. The petitioner had a longstanding relationship with the child that continued for years after her relationship with the biological mother ended, and the court recognized that she could be considered a “parent” under the law.

Section 70 of the New York Domestic Relations Law states that “either parent” of a child may petition a court to make orders regarding custody and visitation rights. The statute does not, however, provide a distinct definition of a “parent.” In 1991, the Court of Appeals ruled in Alison D. that a “biological stranger to a child” is not a “parent” within the meaning of § 70 and therefore lacks standing to seek visitation rights.

The petitioner in Alison D. was involved in a romantic relationship with the respondent. They decided to have a child together, and the respondent conceived via artificial insemination. She gave birth to a boy in July 1981. The child took the petitioner’s last name, despite the lack of any legal relationship between them. The petitioner and respondent ended their relationship in 1983, but they worked out an agreement for visitation and support payments by the petitioner. This lasted several years, but eventually the respondent cut off the petitioner’s access to the child. The petitioner sought a court order under § 70 for visitation. Even though the child knew both the respondent and the petitioner as “Mommy,” the court denied the petition for lack of standing.

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Family WalkThe right of same-sex couples to marry has been the law of the land throughout the United State for almost two years, when the U.S. Supreme Court issued its decision in Obergefell v. Hodges. While the court noted in Obergefell that most states already allowed adoption and fostering by same-sex couples and gay or lesbian individuals, some states continue to prohibit it. The Nebraska Supreme Court recently issued a decision, Stewart v. Heineman, overturning a state policy prohibiting gay and lesbian people from serving as foster parents. While this ruling only applies to Nebraska, it is another important step forward for the rights of same-sex couples.

A federal district court struck down a Mississippi law banning adoption by same-sex couples last year, but no nationwide standard yet applies in this regard. A U.S. Supreme Court decision from 2016, E.L. v. V.L., held that states must recognize out-of-state adoptions by same-sex couples, but the Supreme Court has not considered the constitutionality of gay adoption or gay fostering bans within a state. A Nebraska policy regarding fostering therefore remained in effect after both Obergefell and E.L.

The Nebraska Department of Health and Human Services (DHHS) issued an administrative memorandum in 1995, titled Memo 1-95, directing the department not to make foster placements “in the homes of persons who identify themselves as homosexuals.” The memo further directed the department not to license such persons as foster homes. According to the Nebraska Supreme Court’s decision in Stewart, state officials had generally concluded that Memo 1-95 was unenforceable with regard to licensing.

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AdoptionAdoptions often end joyfully with the creation of a new family, but they often originate from tragedy. A child in an adoption proceeding may have been orphaned or removed from their birth parents’ home because of abuse or neglect. As happy as the adoption may be, the child is likely to have questions about their origins. New York law makes answers difficult to find for multiple reasons. Some of those reasons make sense in the New York of 2017, while others clearly originated in an earlier era. The principles that led to the establishment of these rules continue to influence New York’s family laws, particularly those involving child custody and child support.

Under § 114 of the New York Domestic Relations Law (DRL), records of adoptions involving an authorized adoption agency are sealed upon the completion of the adoption. Access to these records is almost entirely prohibited without a court order, which courts may only grant in very limited circumstances. A court clerk may issue a certificate of adoption to authorized individuals or agencies, but the certificate may only include a child’s new name, the names of the adoptive parents, and information about the adoption proceeding itself. It may not disclose the child’s pre-adoption name, nor may it disclose any information about the child’s birth parents.

The New York County Surrogate’s Court provided an overview of the history of this statute in footnote 34 of a 2007 ruling, Matter of Doe. The court noted that the statute, first enacted in 1924 and amended in 1938, “reflect[ed] in part the mores of the day.” The purpose of sealing adoption records, according to the court, included protection of the adoptive parents from interference by the birth parents, as well as protection of the birth parents’ privacy. Other reasons, however, included “shielding [the birth parents] from the humiliation of public knowledge of unwanted pregnancies or inability to support” and “shield[ing] the adopted child from the stigmatization of illegitimacy.” This type of rationale is, hopefully, less relevant in the 21st century than the 1920s.

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Choosing A NameFamily law cases in New York City can involve numerous complicated and difficult issues, requiring careful planning and preparation for emotionally trying proceedings. This is probably most true for proceedings involving the custody and care of children, which can occur in connection to a divorce or between parents who were never married. New York law allows parents and legal guardians to petition to change a child’s name. The process is far from simple, especially when someone seeks a name change in connection with a family law proceeding.

No specific legal standard exists for children’s names. A child commonly takes their father’s surname, but this is not required by law. Section 4132 of the New York Public Health Law establishes the form and content requirements for a birth certificate, but it does not expressly require the child’s name. As far back as 1987, the New York Times was reporting on changing social norms regarding baby surnames, largely related to women who do not take their husband’s name when they get married. Now that same-sex marriages are legally recognized throughout the country, naming conventions are likely to go through more changes.

Name changes are fairly common in divorces, such as when women want to return to their maiden name or another prior name. Children’s names potentially present greater controversy. The New York Civil Rights Law allows courts to order a name change for a minor, provided that “there is no reasonable objection” to the change and that the minor’s “interests…will be substantially promoted by the change.” The courts have delved further into these questions.

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Free speech doesn't mean careless talk^ - NARA - 535383Family courts, when dealing with disputes involving children, must consider a child’s best interests and rule in a way that protects the child. This can, at times, include orders restraining the parents and possibly other adults from making certain statements while litigation is ongoing. For example, a court may order parents not to discuss ongoing litigation with the children. The First Amendment to the U.S. Constitution sets very strict limits on a court’s power to prevent people from speaking on particular issues. A 2016 appellate court decision from Georgia examined this issue. The court overturned an injunction barring the parents from making any public statements about the case, including on social media, until the youngest child turned 18—i.e., after 10 years.

The First Amendment is very often misunderstood in public discourse. It only restrains the actions of the government with regard to private individuals’ speech. The U.S. Supreme Court summarized the First Amendment’s free speech protections in its 1972 decision in Grayned v. City of Rockford. While the “government has no power to restrict [speech] because of its message,” the court noted “that reasonable ‘time, place and manner’ regulations…are permitted.” This means that government officials cannot prevent a person from saying something solely because they do not like what the person has to say, but they can prevent the person from shouting it through a megaphone outside someone’s house in the middle of the night.

Since the First Amendment generally only allows the government to restrain speech based on “time, place, and manner,” most efforts to prevent a person from saying something in advance—often known as prior restraint—are unconstitutional. In 1963’s Bantam Books, Inc. v. Sullivan, the Supreme Court stated that “[a]ny system of prior restraints of expression…bear[s] a heavy presumption against its constitutional validity.” The injunction at issue in the Georgia case was arguably a form of prior restraint.

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PolyfiguresThe U.S. legal system has made numerous recent advances regarding the legal recognition of “non-traditional” family relationships. The U.S. Supreme Court’s 2015 decision in Obergefell v. Hodges struck down laws prohibiting same-sex marriage across the country. This has led to changes in the law regarding the custody rights of people who have helped raise a child but are not a biological parent of the child. The New York Court of Appeals issued an important ruling in 2016 that effectively expanded the definition of “parent” to include same-sex partners of a biological parent. In early March 2017, a New York court granted custody of a child to three people who had raised the child together while involved in a committed polyamorous relationship—sometimes referred to as a “throuple.” The judge cited the child’s own statements in the ruling, noting that the child knows “two women as his mother” and that all three had raised him “in a loving environment.”

Prior to 2016, New York law was based on a 1991 Court of Appeals decision, Alison D. v. Virginia M., which held that someone who is not a child’s biological parent lacks standing to sue for custody. The case involved a lesbian couple who had a child through artificial insemination. The respondent gave birth to the child, and she and the petitioner “jointly cared for and made decisions regarding the child” for several years. After the relationship ended, the respondent gradually restricted the petitioner’s access to the child until she was cut off entirely. The petitioner sued for custody rights, but the court held that she lacked standing as a “parent” under § 70 of the Domestic Relations Law. A dissenting justice criticized the court’s reliance on “biology as the key to visitation rights.”

The dissent in Alison D. noted that the holding would “affect a wide spectrum of relationships” beyond the millions of children of same-sex parents, such as step-parent relationships. Obergefell dealt with some of the issues brought up in Alison D. by effectively legalizing same-sex marriage nationwide. The Supreme Court held that the Fourteenth Amendment’s Due Process and Equal Protection Clauses allows same-sex couples to marry. In August 2016, the New York Court of Appeals reversed Alison D. in two consolidated cases, Matter of Brooke S.B. and Matter of Estrellita A. The court noted that Obergefell specifically mentioned the benefits of marriage equality for “the children being raised by those couples.”

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Electronic pregnancy test with a positive resultThe New York family law system was built on an assumption that children resulted from a union of one female and one male parent, but social and technological changes have rendered this view far too narrow. Assisted reproductive technology (ART) allows a parent to conceive with the help of a sperm donor. While some states have enacted laws addressing ART, the rights and obligations—or lack thereof—of a sperm donor regarding the child remain unclear in many cases. Two court decisions from 2016 show how difficult this issue can be. In one case, a court held that a man who donated sperm to a lesbian couple is not liable for child support. Another court ruled that a sperm donor has parental rights to the child.

State laws regarding establishment of parentage bear many common elements. Most states presume that a husband is the father of a child born to the wife during the marriage. An unmarried father can claim paternity of a child, or a court can order genetic testing of an alleged father. Several decisions from the U.S. Supreme Court, including 1968’s Levy v. Louisiana, invalidated state laws that treat “illegitimate” children differently than children born to married parents. These decisions probably helped pave the way for many forms of ART.

ART laws are not consistent across the states. Section 702 of the Uniform Parentage Act (UPA) of 2002 expressly states that a donor is not a legal parent of any child conceived as a result of the donation, but New York has not enacted the UPA. New York law states that a child “born to a married woman by means of artificial insemination” is legally the child of the woman and her husband, provided that a licensed medical professional performed the procedure. It says nothing about same-sex married couples or ART performed without medical assistance. Court decisions in New York have mostly found that sperm donors are not legal parents.
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Silhouettes of ChildrenDisputes over child custody can create significant complications in a family law case. Unlike financial issues, such as child support, the legal standard for determining custody arrangements depends entirely on subjective factors that are unique to each case. No formulas or calculations can determine the best interest of a child. New York City family courts therefore have a certain amount of discretion to make decisions about child custody based on the available facts. In emergency situations, this requires a quick response. A pending judicial ethics complaint against a New Jersey judge, who ordered the transfer of a child from one parent to another based on what allegedly turned out to be incorrect information, shows just how complex these disputes can become. Matter of DeAvila-Silebi, Docket No. ACJC 2016-001, complaint (N.J. ACJC, Oct. 20, 2016).

Most states use the “best interest of the child” standard in child custody decisions. N.Y. Dom. Rel. L. § 240(1)(a). This means that the paramount concern for the courts is finding an arrangement that is most beneficial to the child or children. In a custody dispute between parents, each parent can present evidence to support their claims, but the final decision should not be based solely on whether either parent has somehow earned the right to custody. Under New York law, custody by a parent or another individual who has been convicted of an offense involving domestic violence or certain other offenses is presumed not to be in a child’s best interest.

The complaint in DeAvila-Silebi addresses the use of police by a judge to transfer a child from one parent to the other, based on what she claimed was an emergency situation. The respondent judge reportedly received a phone call early on a Saturday morning in May 2015. The caller claimed to be an attorney for the mother in an ongoing custody dispute in Essex County, New Jersey, and she told the judge that the child’s father was keeping the child in Fort Lee, a borough in Bergen County, despite the mother having the right of custody at that time. She reportedly called the Fort Lee Police Department and asked them to have an officer accompany the mother while she retrieved the child. The police did so, and the child was returned to the mother’s custody.

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