New York Law Review

Tag: Custody

  • Matter of Brooke S.B. v. Elizabeth A.C.C., 32 N.Y.3d 1 (2018): Redefining “Parent” for Custody and Visitation Rights

    32 N.Y.3d 1 (2018)

    A non-biological, non-adoptive partner has standing to seek visitation and custody under Domestic Relations Law § 70 if they can prove by clear and convincing evidence that the parties agreed to conceive a child and raise the child together.

    Summary

    The New York Court of Appeals overruled its prior decision in Matter of Alison D. v. Virginia M., which held that only biological or adoptive parents had standing to seek custody or visitation rights. The court consolidated two cases, Matter of Brooke S.B. v. Elizabeth A.C.C. and Matter of Estrellita A. v. Jennifer L.D., where same-sex partners sought custody or visitation of children to whom they were not biologically related. The Court of Appeals held that the definition of “parent” in Domestic Relations Law § 70 should be expanded. Now a non-biological or non-adoptive parent can obtain standing if they can prove, by clear and convincing evidence, the existence of an agreement with the biological parent to conceive and raise a child as co-parents.

    Facts

    Matter of Brooke S.B. v. Elizabeth A.C.C.: The parties, a same-sex couple, jointly decided to have a child. The respondent became pregnant through artificial insemination. The petitioner was actively involved during the pregnancy, birth, and subsequent upbringing of the child. After the relationship ended, the respondent terminated the petitioner’s contact with the child. The petitioner sought joint custody and visitation. The Family Court dismissed the petition, citing Alison D.

    Matter of Estrellita A. v. Jennifer L.D.: The parties, a same-sex couple, agreed to have a child. The respondent bore the child through artificial insemination. The petitioner participated actively in the child’s life. After the relationship ended, the petitioner sought visitation. The respondent initially obtained child support from the petitioner, arguing that the petitioner was a parent. Then, the respondent moved to dismiss the visitation petition, citing Alison D. The Family Court denied the motion, applying the doctrine of judicial estoppel based on the prior child support determination.

    Procedural History

    Brooke S.B.: The Family Court dismissed the petition for lack of standing, relying on Alison D. The Appellate Division unanimously affirmed. The Court of Appeals granted leave to appeal.

    Estrellita A.: The Family Court denied the respondent’s motion to dismiss, finding judicial estoppel. The Appellate Division affirmed, also finding judicial estoppel. The Court of Appeals granted leave to appeal.

    Issue(s)

    1. Whether a non-biological, non-adoptive parent has standing to seek custody or visitation under Domestic Relations Law § 70.

    2. Whether the ruling in Alison D. should be overruled.

    Holding

    1. Yes, a non-biological, non-adoptive parent can obtain standing if there was a pre-conception agreement to conceive and raise the child as co-parents.

    2. Yes, the court overruled Alison D.

    Court’s Reasoning

    The Court acknowledged that its prior decision in Alison D., which limited standing to biological or adoptive parents, was no longer workable due to evolving family structures and legal recognition of same-sex relationships. The court cited the need to consider the best interests of the child, who could suffer from being separated from a primary attachment figure, and the inequity created by Alison D., especially in light of the enactment of same-sex marriage. The Court emphasized the historic use of equity powers. The Court reasoned that the narrow definition of “parent” in Alison D. was inconsistent with the state’s broader equitable powers to ensure that custody and visitation matters served the best interests of the child. The court found that Alison D.’s “bright-line” rule had led to unfair outcomes for children in non-traditional families. The court also held that the right to marry provides benefits not only for same-sex couples, but also the children being raised by those couples.

    The Court held that a non-biological, non-adoptive parent may obtain standing to petition for custody or visitation under Domestic Relations Law § 70 (a) if they prove by clear and convincing evidence an agreement with the biological parent to conceive and raise the child as co-parents. This is a “narrow” and carefully constructed approach. The court declined to adopt a functional test for all situations.

    Practical Implications

    Attorneys handling custody and visitation cases should now assess whether the parties had a pre-conception agreement to conceive and raise the child. This case broadens the class of individuals who can seek custody or visitation, particularly in same-sex and unmarried couple situations. Legal practice in this area must now consider these factors, in determining standing under Domestic Relations Law § 70. The real-world impact of this decision is to make access to courts more equitable and to provide increased stability and potential parental figures to children.

    This ruling creates a significant shift in the approach to standing in custody and visitation cases and underscores the importance of pre-conception planning and agreements for prospective parents.

  • Matter of Brooke S.B. v. Elizabeth A.C.C., 28 N.Y.3d 1 (2016): Standing for Non-Biological Parents in Custody and Visitation Disputes

    <strong><em>Matter of Brooke S.B. v. Elizabeth A.C.C.</em>, 28 N.Y.3d 1 (2016)</em></strong>

    A non-biological, non-adoptive parent has standing to seek custody or visitation under Domestic Relations Law § 70 if they can prove by clear and convincing evidence that they agreed with the biological parent to conceive a child and raise the child together as co-parents.

    <p><strong>Summary</strong></p>

    The New York Court of Appeals overruled its prior decision in <em>Matter of Alison D. v. Virginia M.</em> to address the evolving definition of “parent” in custody and visitation cases. The Court held that a non-biological parent can establish standing to seek custody or visitation if they can demonstrate, by clear and convincing evidence, that there was an agreement with the biological parent to conceive and raise the child as co-parents. The Court emphasized the importance of the child’s best interests and the need to adapt legal principles to reflect contemporary family structures. The Court reversed the Appellate Division’s decision in one case and affirmed in another based on this new standard and the application of judicial estoppel.

    <p><strong>Facts</strong></p>

    In <em>Brooke S.B.</em>, a same-sex couple decided to have a child through artificial insemination. The non-biological partner, Brooke, was actively involved in the pregnancy and the child’s upbringing. The couple later separated, and Elizabeth, the biological mother, denied Brooke visitation. In <em>Estrellita A.</em>, another same-sex couple also decided to have a child through artificial insemination. After the couple separated, Estrellita sought visitation. In a prior child support proceeding, Jennifer, the biological mother, successfully argued that Estrellita was a parent, thus estopping her from later denying Estrellita’s parental status for visitation.

    <p><strong>Procedural History</strong></p>

    In <em>Brooke S.B.</em>, the Family Court dismissed Brooke’s petition for lack of standing based on <em>Alison D.</em>. The Appellate Division affirmed. The New York Court of Appeals granted leave to appeal. In <em>Estrellita A.</em>, Family Court initially dismissed Estrellita’s visitation petition based on <em>Alison D.</em>. Then, Family Court granted visitation, finding judicial estoppel. The Appellate Division affirmed, and the New York Court of Appeals granted leave to appeal.

    <p><strong>Issue(s)</strong></p>

    1. Whether a non-biological, non-adoptive parent has standing to seek custody or visitation under Domestic Relations Law § 70.
    2. Whether the principle of <em>stare decisis</em> warranted the continued application of <em>Matter of Alison D. v. Virginia M.</em>

    <p><strong>Holding</strong></p>

    1. Yes, because a non-biological, non-adoptive parent can establish standing to seek custody or visitation if they can prove by clear and convincing evidence that they agreed with the biological parent to conceive a child and raise the child together as co-parents.
    2. No, because the Court overruled <em>Alison D.</em>

    <p><strong>Court's Reasoning</strong></p>

    The Court began by acknowledging that Domestic Relations Law § 70 does not define “parent,” leaving the definition to the courts. The Court reviewed its prior holding in <em>Matter of Alison D.</em>, which had limited standing to biological or adoptive parents to protect the rights of biological parents. However, the Court found that <em>Alison D.</em> was unworkable given evolving family structures and the enactment of same-sex marriage. The Court emphasized that its equitable powers have historically exercised their “inherent equity powers and authority” in order to determine “who is a parent and what will serve a child’s best interests.” The Court found that <em>Alison D.</em> created an inconsistency in the rights and obligations attendant to parenthood, and its foundational premise of heterosexual parenting and non-recognition of same-sex couples was unsustainable. The Court noted, “In the rarest of cases, we may overrule a prior decision if an extraordinary combination of factors undermines the reasoning and practical viability of our prior decision.” The Court then overruled <em>Alison D.</em> and held that a pre-conception agreement to conceive and raise a child as co-parents, if proven by clear and convincing evidence, is sufficient to establish standing. However, the Court declined to establish a test that would apply to every situation, particularly those that did not involve pre-conception agreements.

    <strong>Practical Implications</strong></p>

    This decision significantly alters the landscape of custody and visitation disputes involving non-biological parents in New York. Attorneys must now analyze these cases under the newly established standard. The ruling broadens the definition of “parent” and grants standing to individuals who were previously excluded. This will require a review of existing family law practices and may lead to increased litigation in this area. Lawyers should advise clients to document pre-conception agreements, which is crucial for establishing standing. The Court’s emphasis on the child’s best interests underscores the continued relevance of this factor in custody and visitation cases.

  • People v. Antwine, 9 N.Y.3d 671 (2008): Defining “Escape” from Custody Under New York Law

    People v. Antwine, 9 N.Y.3d 671 (2008)

    Under Penal Law § 205.10(2), a person “escapes from custody” when they break free from an officer’s restraint or control with the conscious purpose of evading that custody, regardless of whether they leave a physical structure.

    Summary

    Antwine was arrested for grand larceny and other charges. While in the hospital for treatment, he removed his handcuff and fled down a hallway. He was apprehended before exiting the hospital. He argued that he could not be convicted of escape in the second degree because he did not leave the hospital, analogizing his situation to escape from a “detention facility” under a different subdivision of the escape statute. The New York Court of Appeals held that physical departure from a structure is not required for a conviction under Penal Law § 205.10(2). The key element is breaking free from the restraint imposed by a public servant with the intent to evade custody.

    Facts

    On April 22, 2003, Antwine was arrested for stealing a car with two children inside and crashing it. He was taken to the precinct, where he complained of a toothache and hernia. Officer Bohan-McDowell escorted him, in handcuffs, to St. Barnabas Hospital by ambulance. At the hospital, the officer handcuffed Antwine’s right wrist to the bed. After Antwine complained the handcuff was too tight, the officer started to loosen it. Antwine then lifted the handcuff and ran away. The officer caught up to him about 25-30 feet down the hallway, but he broke free again and headed toward the hospital exit. The officer tackled him before he exited the building.

    Procedural History

    Antwine was charged with robbery, grand larceny, endangering the welfare of a child, and escape. A jury acquitted him of robbery but convicted him of grand larceny, escape in the second degree, and two counts of endangering the welfare of a child. The Appellate Division affirmed the conviction. This appeal followed.

    Issue(s)

    Whether legally sufficient evidence existed to support Antwine’s conviction for escape in the second degree under Penal Law § 205.10(2), where he fled from an officer while handcuffed to a hospital bed but was apprehended before exiting the hospital.

    Holding

    Yes, because under Penal Law § 205.10(2), escape occurs when a defendant breaks free from an officer’s restraint or control with the conscious purpose to evade custody, regardless of whether they leave a physical structure.

    Court’s Reasoning

    The court distinguished Penal Law § 205.10(2) from § 205.10(1), which concerns escape “from a detention facility.” The latter requires a crossing of a tangible threshold. However, § 205.10(2) focuses on whether the defendant escaped from “custody,” defined in Penal Law § 205.00(2) as “restraint by a public servant.” The court relied on the commonly understood definition of “escape” as “to get away (as by flight or conscious effort): break away, get free or get clear,” citing People v. Hutchinson, 56 N.Y.2d 868, 870 (1982). The court reasoned that once Antwine broke free from the officer’s control and had removed himself from her custody without authorization, the elements of Penal Law § 205.10(2) were met. "Here, the statute requires proof that defendant “escape[d] from custody.” “Custody,” in turn, “means restraint by a public servant” (Penal Law § 205.00 [2]). Hence, once the People show that a defendant broke free or got away from the restraint or control of the officer, as defendant did here by physically removing restraints to free himself from the controls imposed and running away, sufficient evidence exists to support the crime of escape." The court also noted that simply circumventing handcuffs, while remaining under the officer’s control, would only constitute attempted escape. The key was that Antwine was no longer under the officer’s control, requiring her to give chase and placing herself and the public at risk. The court rejected the defendant’s argument that escape requires exiting a building. It would lead to "incongruous results" if a defendant who traveled 35-45 feet through multiple doorways after breaking free from his handcuffs only to fall a few feet short of the exit door should not be found guilty of the crime of escape.

  • Matter of Shaina B., 87 N.Y.2d 733 (1996): Applicability of Foster Care Review to Children in Custody of Minor Parents

    Matter of Shaina B., 87 N.Y.2d 733 (1996)

    Social Services Law § 392, mandating judicial review of foster care status, does not apply to children who reside with their minor parents in foster care and remain in their parents’ legal custody.

    Summary

    This case addresses whether Social Services Law § 392 requires judicial review of children in foster care who are also in the legal custody of their minor parents who are themselves in foster care. The New York Court of Appeals held that such review is not required. The court reasoned that the purpose of § 392 is to ensure permanency planning for children in foster care and to prevent them from languishing in temporary placements. When a child resides with their parent who retains legal custody, the goal of permanency is inherently satisfied. The court also noted alternative mechanisms exist to address concerns about the child’s well-being.

    Facts

    Shaina B. and Stephanie C. were born to minor parents who were in foster care. At the time, New York regulations required the minor parents to surrender custody of their children to the Commissioner of Social Services for the children to be eligible for foster care benefits. In 1993, the regulations changed, allowing the Commissioner to provide foster care payments for both the minor parent and the child, even if the child remained in the legal custody of the parent. Consequently, custody of Shaina B. and Stephanie C. was returned to their minor parents. The children continued to reside with their parents in the same foster care setting.

    Procedural History

    The Commissioner of Social Services moved to withdraw petitions filed under Social Services Law § 392 for review of Shaina B. and Stephanie C.’s foster care status, arguing the reviews were no longer necessary since the children were back in the legal custody of their parents. The Law Guardian opposed the motion. The Family Court granted the Commissioner’s motion. The Appellate Division affirmed. The New York Court of Appeals granted leave to appeal and affirmed the Appellate Division’s order.

    Issue(s)

    Whether Social Services Law § 392, requiring judicial review of foster care status, applies to children who reside with their minor parents in foster care and remain in their parents’ legal custody?

    Holding

    No, because Social Services Law § 392 is designed to address situations where a child is not living in the care and custody of a biological or adoptive parent, and the goal of permanency is already satisfied when a child is in the custody of their parent.

    Court’s Reasoning

    The Court of Appeals determined that the purpose of Social Services Law § 392 is to ensure that children in foster care are moved into permanent home situations, either through adoption or return to their biological families. The Court emphasized that the statute’s design focuses on situations where the child is not living in the care and custody of a biological or adoptive parent. The statute mandates notice to “the child’s parent or guardian who transferred the care and custody of such child…to an authorized agency.” Further, the statute directs the reviewing court to consider the services offered to “re-unite the family.”

    The Court reasoned that if § 392 applied, the only possible outcome of a review proceeding would be to continue the foster care placement, rendering the entire proceeding a “futile exercise.” The court stated that the legislature could not have intended this outcome. It further explained that the statute was enacted to reform the foster care system by guaranteeing judicial oversight, ensuring that no child would “fall between the cracks.” In this case, where the children are living with their biological parents who have legal custody, the goal of permanency is satisfied, rendering judicial review under § 392 unnecessary.

    The court rejected policy arguments about the lack of judicial supervision for this “new class” of at-risk children, noting that § 392 is not aimed broadly at ensuring supervision of all aspects of foster care placements, but rather at making agencies accountable for moving children into permanent homes. Finally, the court observed that regulations treat the children and their minor parents as a family unit for financial support, case planning, and preventive services. Concerns about neglect or abuse can be addressed through other legal mechanisms, such as Article 10 of the Family Court Act. The court concluded that “there exist adequate alternative methods of addressing the concern raised by the Law Guardian that children will now be ‘lost’ in foster care.”

  • Gordon v. City of New York, 70 N.Y.2d 839 (1987): Duty of Care to Prevent Self-Harm in Custody

    Gordon v. City of New York, 70 N.Y.2d 839 (1987)

    A municipality’s duty of care to a person in custody to protect them from self-inflicted harm arises when the authorities know or should know of suicidal tendencies or potential for self-harm, requiring reasonable care to prevent such harm.

    Summary

    Gordon, while in custody, sustained injuries after scaling his cell bars and diving headfirst into a toilet bowl. He sued the City of New York, alleging negligence in failing to prevent his self-inflicted harm. The Court of Appeals affirmed the lower court’s decision dismissing the claim, holding that the City did not breach its duty of care. The Court reasoned that while prison authorities owe a duty of care to inmates, this duty is triggered by knowledge of suicidal tendencies or potential for self-harm. The City’s actions were deemed reasonable given the circumstances, as Gordon’s behavior, though irrational, did not indicate a foreseeable risk of self-harm in the specific manner that occurred.

    Facts

    Gordon exhibited boisterous, irrational, and delusional behavior while in custody. As a result, he was placed alone in a bare cell, without a belt or shoelaces. A correction officer was stationed directly outside his cell, monitoring him. Prior to the incident, Gordon did not display any explicit suicidal tendencies or indications of intent to harm himself in the manner he ultimately did. He suddenly scaled the bars of his cell and plunged headfirst into the toilet bowl.

    Procedural History

    Gordon sued the City of New York, alleging negligence. The lower court dismissed the claim. The Appellate Division affirmed the dismissal, finding that the City had acted reasonably under the circumstances. The New York Court of Appeals granted leave to appeal and affirmed the Appellate Division’s order.

    Issue(s)

    Whether the City of New York breached its duty of care to Gordon by failing to prevent his self-inflicted injuries while he was in custody.

    Holding

    No, because neither the requisite knowledge of suicidal tendencies nor a lack of proper supervision was demonstrated. The City’s information and Gordon’s actions before the incident did not give notice that he might harm himself in such a manner.

    Court’s Reasoning

    The Court reasoned that while prison authorities owe a duty of care to safeguard the health and safety of those in their custody, this duty is not absolute. It is triggered when authorities know or should know that a prisoner has suicidal tendencies or might physically harm themself. The Court emphasized that the harm must be a reasonably foreseeable consequence of the defendant’s actions or omissions. “Whether hindsight reveals that greater precautions could have been taken to avoid the harm that eventuated is irrelevant if the injury could not reasonably have been foreseen at the moment the defendant engaged in the activity which later proves harmful.” (Danielenko v Kinney Rent A Car, supra, at 204.)

    The Court found that Gordon’s behavior, while irrational, did not provide sufficient notice to the City that he would attempt to harm himself in the specific manner he did. The Court noted the undisputed evidence that boisterous, irrational behavior is common in holding pens and does not necessarily warrant medical attention. The Court also noted Gordon’s stated intention to feign insanity, his apparent normality shortly before the incident, the absence of any knowledge of a suicidal history, and the routine removal of belts and shoelaces, as well as the monitoring officer. The Court acknowledged the dilemma faced by the City, as the use of restraints and medications to immobilize inmates presents its own set of problems. The Court concluded that the City exercised reasonable care in light of what could reasonably have been anticipated and that Gordon failed to establish a prima facie case of negligence. Citing Hirsh v. State of New York, the court cautioned against imposing liability for “delicate mistakes in judgment” that would lead to overly restrictive confinement measures counterproductive to recovery or rehabilitation.

  • People v. Neale, 77 N.Y.2d 488 (1991): Defining Custody for Escape Charges After Acquittal by Reason of Insanity

    People v. Neale, 77 N.Y.2d 488 (1991)

    An individual acquitted by reason of mental disease or defect and subsequently escaping from a non-secure mental health facility is not considered to be escaping from “custody” as defined in the second-degree escape statute, but may be considered in custody for a third-degree escape charge.

    Summary

    The New York Court of Appeals addressed whether a defendant, acquitted of a crime by reason of mental disease or defect and placed in a non-secure facility, could be charged with escape in the second degree after leaving the facility without authorization. The court held that escape in the second degree requires escape from custody, which in this context, requires more than mere supervision in a non-secure environment. However, the court also considered the possibility of a charge of escape in the third degree. This case highlights the nuances of defining “custody” within the framework of mental health law and penal law related to escape.

    Facts

    The defendant, Neale, was acquitted of criminal charges due to mental disease or defect under CPL 330.20. Following the acquittal, the court ordered Neale to be placed in the custody of the Commissioner of Mental Health. Initially, Neale was confined in a secure psychiatric facility. Later, the court granted permission for Neale to be transferred to a non-secure facility. Neale subsequently left the non-secure facility without permission and was charged with escape in the second degree.

    Procedural History

    The trial court dismissed the second-degree escape charge, and the Appellate Division affirmed. The prosecution appealed to the New York Court of Appeals, arguing that Neale’s unauthorized departure from the non-secure facility constituted escape in the second degree because he was still in the “custody” of the Commissioner of Mental Health.

    Issue(s)

    Whether a defendant who has been acquitted of a crime by reason of mental disease or defect and who elopes from a non-secure mental health facility is considered to have escaped from “custody” within the meaning of Penal Law § 205.10, thus justifying a charge of escape in the second degree.

    Holding

    No, because the “custody” required for escape in the second degree necessitates a level of restriction greater than that present in a non-secure facility. However, the court suggested the possibility of a charge for escape in the third degree.

    Court’s Reasoning

    The Court of Appeals reasoned that the term “custody,” as used in the escape statute, implies a significant restraint on liberty. The court acknowledged that CPL 330.20 places individuals acquitted by reason of mental disease or defect under the supervision of the Commissioner of Mental Health. However, it distinguished between secure and non-secure facilities. The court found that the level of supervision and freedom afforded in a non-secure facility did not constitute the type of “custody” contemplated by the second-degree escape statute. The court emphasized the difference between the restriction of liberty in a secure facility versus the relative freedom in a non-secure facility. A dissenting opinion argued that escape from a non-secure facility still constituted escape from the custody of the Commissioner of Mental Health and should be considered escape in the third degree, pointing to the language of CPL 330.20 which refers to acquittees, whether in secure or non-secure facilities, as being in the “custody” of the Commissioner. The dissent cited People v Walter, 115 AD2d 52, 55-56 and People v Buthy, 85 AD2d 890 in its reasoning.

  • Spence-Chapin Adoption Service v. Polk, 29 N.Y.2d 196 (1971): Parental Rights of an Unwed Mother

    Spence-Chapin Adoption Service v. Polk, 29 N.Y.2d 196 (1971)

    An unwed mother has a paramount right to the custody of her child, which can only be superseded by proof of abandonment, formal surrender of the child for adoption, or a showing of unfitness.

    Summary

    This case addresses the rights of an unwed mother to regain custody of her child after initially placing the child in foster care. The New York Court of Appeals held that absent abandonment, a valid surrender for adoption, or a showing of unfitness, the unwed mother has a paramount right to the custody of her child. The court rejected the foster parents’ claim to custody, emphasizing that the state’s power to remove a child from its parent is limited and should not be based on a comparison of which party could provide a “better” upbringing.

    Facts

    An unwed mother of Chinese descent gave birth to a child in 1968. Because of her family circumstances, she initially placed the child with the New York City Commissioner of Social Services for temporary care, but not for adoption. The Spence-Chapin agency then placed the child with the Polks as foster parents. The mother visited the child regularly. Later, the agency persuaded the mother to execute a written surrender of the child for adoption, conditioned on placement with parents of Chinese extraction. When the agency demanded the child’s return for adoption placement, the Polks refused, seeking to adopt the child themselves. The mother then demanded the return of the child, and the Commissioner of Social Services consented.

    Procedural History

    Spence-Chapin Adoption Service initiated proceedings to recover the child from the Polks. The mother also filed a proceeding to regain custody. The Family Court ruled in favor of the Polks, believing it was in the child’s best interest. The Appellate Division reversed, holding that absent abandonment, surrender, or unfitness, the mother was entitled to custody. The Polks appealed to the New York Court of Appeals.

    Issue(s)

    Whether, absent abandonment, statutory surrender, or a finding of parental unfitness, can a court deprive a natural mother of the custody of her child based solely on a determination of the child’s best interests in the custody of foster parents?

    Holding

    No, because absent abandonment, a valid surrender, or a showing of parental unfitness, the natural mother is entitled to the custody of her child.

    Court’s Reasoning

    The court emphasized the fundamental right of a parent to the custody of their child, stating, “Child and parent are entitled to be together, unless compelling reason stemming from dire circumstances or gross misconduct forbid it in the paramount interest of the child, or there is abandonment or surrender by the parent.” The court found no evidence of abandonment or unfitness on the part of the mother. The court highlighted that the mother’s surrender had been nullified by the Commissioner’s consent to return custody to her. The court rejected the argument that the Polks could provide a better upbringing, stating that the issue is not about comparing the quality of love or which family background is “best”. The court also underscored the importance of foster parents fulfilling their obligation to return the child on demand, as the Polks had breached their trust. The court quoted People ex rel. Kropp v. Shepsky, 305 N.Y. 465, 469, stating that “the burden rests, not, for instance, upon the mother to show that the child’s welfare would be advanced by being returned to her, but rather upon the non-parents to prove that the mother is unfit to have her child and that the latter’s well-being requires its separation from its mother.” The court further emphasized that absent a finding of unfitness, the mother’s consent is essential for adoption, and that the Polks being granted custody does not guarantee adoption. The court affirmed the Appellate Division’s order, returning the child to her mother.