New York Law Review

Tag: family law

  • Matter of Odunbaku v. Odunbaku, 26 N.Y.3d 225 (2015): Service of Court Orders on Counsel for Timeliness of Objections

    26 N.Y.3d 225 (2015)

    When a party is represented by counsel in Family Court, the 35-day time limit for filing objections to a support magistrate’s final order, when served by mail, does not begin to run until the order is mailed to counsel.

    Summary

    The New York Court of Appeals held that when a party has legal representation in Family Court, the time period for filing objections to a support magistrate’s order, when served by mail, starts when the order is mailed to the party’s attorney. The court reversed the Appellate Division, which had affirmed the Family Court’s decision to deny the mother’s objections to a support order as untimely because they were filed more than 35 days after the order was mailed to her, but before it was mailed to her attorney. The court found that the lower courts erred in not applying the principle established in Matter of Bianca v. Frank, which mandates service on counsel when a party is represented by an attorney to trigger time limitations, unless a statute explicitly excludes the necessity of serving counsel. The court emphasized the importance of ensuring effective access to justice and upholding the benefits of legal representation.

    Facts

    A mother sought child support from the father, and a Support Magistrate entered an order against him. When the father failed to make payments, the mother filed a violation petition, and the father cross-petitioned for a downward modification. A second Support Magistrate granted the father’s modification petition, reducing his child support obligation. The Support Magistrate’s order, dated July 24, 2013, included the notice that written objections had to be filed within 35 days of the mailing of the order. The Clerk of Family Court mailed the orders to the father and the mother, but not to either of their attorneys. The mother’s attorney filed objections 41 days after the orders were mailed, explaining she had not received notice. Family Court denied the objections as untimely. The Appellate Division affirmed, and the mother appealed to the Court of Appeals.

    Procedural History

    The Family Court denied the mother’s objections to the support order as untimely. The mother moved to reargue, which was denied. The Appellate Division affirmed the Family Court’s order. The mother appealed from the Support Magistrate’s orders and findings of fact, and from Family Court’s order denying her objections and its order upon re-argument, to the New York Court of Appeals.

    Issue(s)

    1. Whether the 35-day time requirement for filing objections to a support magistrate’s order, as outlined in Family Court Act § 439 (e), starts when the order is mailed to the party or when the order is mailed to the party’s attorney when that party is represented by counsel?

    Holding

    1. Yes, because under the principle established in Matter of Bianca v. Frank, when a party is represented by counsel, the time limit for filing objections does not begin to run until the final order is mailed to counsel.

    Court’s Reasoning

    The Court relied heavily on Matter of Bianca v. Frank, which established that when a party is represented by counsel, any documents with legal effect in a proceeding should be served on the attorney. The Court reasoned that this principle applies to Family Court Act § 439 (e). The court rejected the father’s argument that the statute’s language clearly indicated that service on the party was sufficient for the time requirements, stating that any exception to the rule of service to counsel must be explicitly stated by the legislature. The Court noted the legislature is presumed to be aware of existing case law when enacting new laws, and because the legislature did not include explicit language that a represented party does not need to have their attorney served, Bianca applied. Finally, the court stated mailing court orders to the parties without also mailing the orders to their attorneys impairs effective access to justice and undermines the benefits of legal representation.

    Practical Implications

    This decision reinforces the importance of serving counsel with all relevant legal documents when a party is represented. Attorneys must ensure that they are receiving all communications related to their client’s cases. This case provides a significant reminder that time limitations for actions start when counsel is served, unless a statute expressly states otherwise. Family Courts must establish procedures to ensure that attorneys of record are served. This case highlights the benefits of legal representation and ensures that the process of law is accessible and fair to all. Subsequent cases dealing with service requirements in family law will likely cite this decision.

  • 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.

  • Matter of Frank J., 24 N.Y.3d 1003 (2014): Determining “Person Legally Responsible” in Child Protective Proceedings

    24 N.Y.3d 1003 (2014)

    A person can be considered a “person legally responsible” (PLR) for a child under the Family Court Act if they act as the functional equivalent of a parent, even if they are not the child’s parent or legal guardian.

    Summary

    In Matter of Frank J., the New York Court of Appeals addressed whether an uncle was a “person legally responsible” (PLR) for his niece under the Family Court Act. The uncle was accused of attempting to sexually abuse his niece during an overnight visit. The court considered factors such as the frequency and nature of contact, control over the child’s environment, duration of contact, and the relationship to the child’s parents. The court held that the uncle was a PLR, emphasizing the overnight visit and his sole responsibility for the child at the time of the incident. The court also found that the uncle’s actions constituted derivative neglect of his own children because the abuse occurred in their presence. A dissenting opinion argued that the record lacked sufficient evidence of the uncle’s caretaker responsibilities to establish that he was a PLR.

    Facts

    Frank J., the uncle of a minor child through marriage, was accused of attempting to sexually abuse the child during an overnight visit at his home. The child alleged that Frank J. entered the bathroom while she was showering and made inappropriate advances. During the relevant time, the child visited Frank J.’s home eight or nine times, including several overnight visits, and interacted with Frank J. at family functions. The child’s mother testified she expected Frank J. to care for the child when her sister, Frank J.’s wife, was unavailable.

    Procedural History

    The Administration for Children’s Services (ACS) filed petitions against Frank J., alleging attempted sexual abuse of his niece and derivative neglect of his own children. The Family Court denied Frank J.’s motion to dismiss and, after a fact-finding hearing, found that he had abused the child and derivatively neglected his children. The Appellate Division affirmed the Family Court’s decision. The Court of Appeals granted leave to appeal.

    Issue(s)

    1. Whether Frank J. was a “person legally responsible” (PLR) for the child under Family Court Act § 1012 (g).

    2. Whether the finding of derivative neglect of Frank J.’s children was proper.

    Holding

    1. Yes, because Frank J. acted as the functional equivalent of a parent during the relevant time, given the frequency of contact, his control over the child’s environment, the familial relationship, and the overnight visit.

    2. Yes, because the attempted abuse of the niece constituted a flawed understanding of his duties as a parent and impaired parental judgment with respect to his own children, thereby establishing derivative neglect.

    Court’s Reasoning

    The court relied on Matter of Yolanda D., which established factors for determining PLR status. These factors include: frequency and nature of contact, control over the child’s environment, duration of contact, and the relationship to the child’s parents. The court emphasized that the PLR must be the “functional equivalent of a parent.” The court found that the facts met the Yolanda D. factors, particularly the overnight visit, during which Frank J. was solely responsible for the child, demonstrating parental-like duties and control over the child’s environment. With respect to the derivative neglect, the Court cited Family Court Act § 1046(a)(i), which stated that proof of abuse or neglect of one child shall be admissible evidence on the issue of the abuse or neglect of any other child. The court held that his attempted abuse of his niece, which occurred in the presence of his own children, impaired his parental judgment and supported the finding of derivative neglect.

    The dissent argued that the record was insufficient to establish that Frank J. was a PLR because it lacked sufficient details regarding the nature and duration of Frank J.’s caretaker responsibilities. The dissent distinguished the case from Yolanda D., highlighting that the record in this case showed only limited contact between Frank J. and the child, usually in the presence of other family members, and that the child visited the home to be with her cousins, and not Frank J. The dissent emphasized that the aunt, not Frank J., was primarily responsible for the child’s care during her visits to the household and that the Family Court appeared to have placed undue significance on what it found to be a “normal uncle/niece relationship”.

    The majority cited the following from Yolanda D.: “that parenting functions are not always performed by a parent but may be discharged by other persons, including custodians, guardians and paramours, who perform caretaking duties commonly associated with parents. Thus, the common thread running through the various categories of persons legally responsible for a child’s care is that these persons serve as the functional equivalent of parents.”

    Practical Implications

    This case clarifies the application of the “person legally responsible” standard under the Family Court Act. Lawyers must carefully analyze the nature and extent of a non-parent’s interactions with a child to determine if they acted as the functional equivalent of a parent. The case underscores the significance of overnight visits and the assumption of parental duties in establishing PLR status. Additionally, the case shows how a finding of abuse or neglect of one child can lead to a finding of derivative neglect of other children. This has implications for child protective proceedings, expanding the scope of potential respondents. Finally, lawyers should be prepared to present detailed evidence regarding the frequency, nature, and duration of contact and the extent of control a non-parent exercises over a child to support their client’s case.

  • Matter of L.H. v. P.M., 21 N.Y.3d 88 (2013): Incarceration and Visitation Rights

    L.H. v. P.M., 21 N.Y.3d 88 (2013)

    An incarcerated parent does not automatically forfeit their right to visitation; there is a rebuttable presumption that visitation is in the child’s best interest unless it is shown by a preponderance of the evidence that visitation would be harmful to the child.

    Summary

    This case addresses whether an incarcerated parent has a right to visitation with their child. The father, an inmate, sought visitation with his child after the mother refused to bring the child to the prison. The Family Court granted the father visitation, and the Appellate Division affirmed. The New York Court of Appeals affirmed, holding that incarceration alone does not make a visitation order inappropriate. Instead, there is a rebuttable presumption that visitation is in the child’s best interest, which can only be overcome by demonstrating that visitation would be harmful to the child. The court clarified that the standard for rebuttal is a preponderance of the evidence, not “substantial proof.”

    Facts

    The petitioner, an inmate in New York, acknowledged paternity of a child before his imprisonment.

    The respondent mother refused to bring the child to the prison for visitation.

    The father commenced a Family Court Act proceeding seeking visitation.

    At the time of the hearing, the child was three years old.

    Procedural History

    Family Court granted the father’s petition, awarding periodic four-hour visits at the prison.

    The Appellate Division affirmed, finding a sound and substantial basis in the record to support the Family Court’s determination.

    The mother appealed to the New York Court of Appeals.

    Issue(s)

    Whether the lower courts employed the correct legal standard in reviewing the petition for visitation, specifically regarding the presumption in favor of visitation for non-custodial parents, including incarcerated parents.

    Whether there was a sound and substantial basis in the testimony for finding that visitation was in the child’s best interests.

    Whether the Appellate Division erred in failing to consider the impact of the father’s move from one prison to another.

    Holding

    Yes, because New York law presumes visitation with a non-custodial parent to be in the child’s best interest, and incarceration alone does not negate that presumption; it can only be rebutted by showing that visitation would be harmful to the child by a preponderance of the evidence.

    Yes, because the factual findings underpinning the lower courts’ best interests determinations were supported by evidence in the record.

    No, because the Appellate Division correctly ruled that the issue of the father’s move from one prison to another should have been brought to the attention of Family Court via a modification petition.

    Court’s Reasoning

    The Court of Appeals affirmed the lower courts’ rulings, emphasizing the presumption in favor of visitation for non-custodial parents, even when incarcerated. The court clarified that this presumption is not absolute and can be rebutted if visitation is shown to be harmful to the child. The court differentiated this case from Matter of Tropea v. Tropea, explaining that Tropea rejected mechanical analyses in relocation cases but did not eliminate the possibility of relying on presumptions. The court stated, “A rebuttable presumption that a noncustodial parent will be granted visitation is an appropriate starting point in any initial determination regarding custody and/or visitation.”

    The Court rejected the argument that “substantial proof” is required to rebut the presumption, holding that a “preponderance of the evidence” is the correct standard.

    The Court found support in the record for the lower courts’ findings that visitation was in the child’s best interest, noting that travel to and from the prison would not harm the child and that the father had attempted to maintain a relationship with the child. The court lacks the power to review affirmed findings of fact if supported by evidence.

    Finally, the Court held that the father’s move to a different prison should be addressed through a modification petition in Family Court, not raised for the first time on appeal. “That issue should not have been raised in the first instance for determination by an appellate court.”

  • In re Hailey ZZ., 19 N.Y.3d 424 (2012): Limits on Court’s Power to Order Post-Termination Contact in Neglect Cases

    In re Hailey ZZ., 19 N.Y.3d 424 (2012)

    In cases of parental rights termination due to permanent neglect under Social Services Law § 384-b, Family Court lacks the authority to order post-termination contact between the parent and child, as such power resides solely with the legislature.

    Summary

    This case addresses the conflict among New York’s Appellate Divisions regarding Family Court’s authority to mandate continuing contact between a parent and child after parental rights are terminated due to permanent neglect. The Court of Appeals held that Family Court does not possess such authority. The case involved Hailey ZZ., whose father was incarcerated. After finding the father had permanently neglected Hailey and terminating his parental rights, the Supreme Court denied his request for post-termination visitation. The Court of Appeals affirmed the lower court’s decision, emphasizing that absent explicit legislative authorization, Family Court cannot order post-termination contact in cases of termination due to permanent neglect. The Court noted concerns about hindering adoptions and disrupting adoptive families.

    Facts

    Hailey ZZ. was born in 2007. Her father was incarcerated in early 2008. In November 2008, the Tompkins County Department of Social Services (DSS) removed Hailey and her half-sister from their mother’s care. DSS filed petitions in March 2010 against both parents, seeking orders adjudicating Hailey as permanently neglected and terminating parental rights. The mother surrendered her rights in July 2010, but the proceedings continued against the father.

    Procedural History

    The Tompkins County Supreme Court (acting as Family Court) determined that DSS made diligent efforts to strengthen the parental relationship but that the father failed to plan for Hailey’s future. The court adjudicated Hailey permanently neglected and, after a dispositional hearing, terminated the father’s parental rights, denying his request for continued visitation. The Appellate Division affirmed, stating post-termination visitation was unavailable in a contested termination proceeding. The Court of Appeals granted leave to appeal and affirmed the Appellate Division’s order.

    Issue(s)

    Whether Family Court has the authority to order post-termination contact between a parent and child when parental rights have been terminated based on permanent neglect under Social Services Law § 384-b.

    Holding

    No, because Family Court lacks the authority to mandate post-termination contact in cases where parental rights are terminated due to permanent neglect under Social Services Law § 384-b; such power rests with the legislature.

    Court’s Reasoning

    The Court of Appeals reviewed the conflicting decisions of the Appellate Divisions. The Fourth Department had held that Family Court could order post-termination contact in certain cases, while the Third Department consistently held that it could not. The Court of Appeals sided with the Third Department. The Court emphasized its prior holding in Matter of Gregory B., 74 N.Y.2d 77 (1989), where it stated that imposing post-termination contact by judicial order could threaten the integrity of the adoptive family unit and that “ ‘open’ adoptions are not presently authorized. If they are to be established, it is the Legislature that more appropriately should be called upon to balance the critical social policy choices and the delicate issues of family relations involved in such a determination.” The Court reasoned that the Legislature authorized “open adoptions” through voluntary surrender in Social Services Law § 383-c but made no corresponding change to § 384-b. The Court further noted the practical problems with judicial imposition of post-termination contact, potentially discouraging adoption and threatening adoptive families. The Court explicitly declined to vest Family Court with the discretion and flexibility to order post-termination contact, particularly in light of concerns by County Attorneys regarding the uncertainty, delay, and expense which can discourage adoption of neglected children. As the Monroe County Attorney stated, “many prospective adoptive parents are reluctant or unwilling to entertain the prospect of facilitating contact between a child and a biological parent sufficiently troubled to have lost parental rights.”

  • H.M. v. E.T., 14 N.Y.3d 521 (2010): Family Court Jurisdiction Over Same-Sex Partner Support Petitions

    H.M. v. E.T., 14 N.Y.3d 521 (2010)

    Family Court has subject matter jurisdiction to adjudicate a support petition brought by a biological parent against a former same-sex partner under the Uniform Interstate Family Support Act (UIFSA) where the petitioner alleges the respondent is a parent chargeable with the child’s support.

    Summary

    H.M. filed a support petition against E.T., her former same-sex partner, alleging they planned to conceive and raise a child together, with E.T. performing the artificial insemination. After the child’s birth, E.T. ended the relationship. H.M. sought child support in Canada, which was transferred to Family Court in New York under UIFSA. E.T. moved to dismiss for lack of jurisdiction, which was initially granted, then reversed by the Family Court, and later reinstated by the Appellate Division. The New York Court of Appeals reversed, holding that Family Court has jurisdiction to determine if E.T. is a parent chargeable with the child’s support under Article 4 of the Family Court Act.

    Facts

    H.M. and E.T. were in a romantic relationship from 1989 to 1995, cohabitating for much of that time.
    In 1990, they planned to conceive and raise a child together, discussing conception methods and child-rearing.
    In 1993, H.M. became pregnant via artificial insemination performed by E.T.
    H.M. gave birth in September 1994; E.T. was present and cut the umbilical cord, and they shared expenses.
    E.T. ended the relationship four months after the child’s birth, and H.M. moved to Canada with the child.
    An attempted reconciliation failed in 1997, though E.T. occasionally provided gifts and monetary contributions for the child.

    Procedural History

    2006: H.M. filed a parentage and support application in Ontario, Canada.
    Under UIFSA, the application was transferred to Family Court, Rockland County.
    Family Court Support Magistrate dismissed the petition for lack of jurisdiction.
    Family Court reversed the dismissal and ordered a hearing on equitable estoppel.
    The Appellate Division reversed, reinstating the dismissal for lack of subject matter jurisdiction.
    H.M. appealed to the New York Court of Appeals.

    Issue(s)

    Whether Family Court has subject matter jurisdiction to adjudicate a support petition brought under UIFSA by a biological parent seeking child support from her former same-sex partner.

    Holding

    Yes, because Article 4 of the Family Court Act establishes the public policy of obligating individuals, regardless of gender, to provide support for their children, and Family Court has jurisdiction to determine whether an individual is responsible for the support of a child.

    Court’s Reasoning

    The Court of Appeals reasoned that Family Court is a court of limited jurisdiction, but it has the power granted to it by the State Constitution or by statute. The Constitution grants Family Court jurisdiction over proceedings to determine “the support of dependents.” Family Court Act § 413(1)(a) states that “the parents of a child under the age of twenty-one years are chargeable with the support of such child.”

    The court emphasized that statutory jurisdiction carries with it ancillary jurisdiction necessary to fulfill its core function. Since Family Court has subject matter jurisdiction to ascertain the support obligations of a female parent, it also has the inherent authority to ascertain in certain cases whether a female respondent is, in fact, a child’s parent.

    The court noted that Family Court and Supreme Court have coextensive authority in child support matters. The relevant statutes, Family Court Act § 413 and Domestic Relations Law § 240, establish statewide child support guidelines applicable to all child support proceedings.

    The court concluded that because H.M. asserts that E.T. is the child’s parent and is therefore chargeable with the child’s support, this case falls within Family Court’s Article 4 jurisdiction.

  • Debra H. v. Janice R., 14 N.Y.3d 576 (2010): Parental Rights of Same-Sex Civil Union Partners

    Debra H. v. Janice R., 14 N.Y.3d 576 (2010)

    New York will recognize parentage created by a civil union in Vermont, allowing a partner in the civil union to seek visitation and custody of a child born to the other partner during the civil union.

    Summary

    Debra H. sought visitation and custody of M.R., a child born to her civil union partner, Janice R., through artificial insemination. The New York Court of Appeals reaffirmed its prior holding in Alison D., stating that, generally, only biological or adoptive parents have standing to seek visitation. However, the Court recognized Debra H. as M.R.’s parent based on comity, as Vermont law considers both partners in a civil union to be parents of a child born to either partner during the union. The case was remitted for a best-interest hearing to determine visitation and custody.

    Facts

    Janice R. is the biological mother of M.R., conceived through artificial insemination. Janice R. and Debra H. entered into a civil union in Vermont before M.R.’s birth. Janice R. repeatedly refused Debra H.’s requests to adopt M.R. After their separation, Janice R. initially allowed Debra H. supervised visits but later cut off all communication. Debra H. then sought joint legal and physical custody of M.R.

    Procedural History

    Debra H. filed a proceeding in Supreme Court seeking custody and visitation. The Supreme Court ruled in favor of Debra H., invoking equitable estoppel. Janice R. appealed, and the Appellate Division reversed, citing Alison D., stating that only biological or adoptive parents have standing. Debra H. appealed to the New York Court of Appeals.

    Issue(s)

    1. Whether New York should recognize a non-biological, non-adoptive individual as a parent based on equitable estoppel, thus allowing them to seek visitation and custody.
    2. Whether, under the principles of comity, New York should recognize Debra H. as M.R.’s parent because of her status as a civil union partner under Vermont law, thereby granting her standing to seek visitation and custody.

    Holding

    1. No, because parentage under New York law derives from biology or adoption, as affirmed in Alison D.
    2. Yes, because comity should be extended to recognize parentage created by a civil union in Vermont, allowing Debra H. to seek visitation and custody in a best-interest hearing.

    Court’s Reasoning

    The Court reaffirmed its holding in Alison D. v. Virginia M., 77 N.Y.2d 651 (1991), which established that only biological or adoptive parents have standing to seek visitation under Domestic Relations Law § 70. The Court rejected the argument that equitable estoppel could be invoked to grant standing to a non-biological, non-adoptive individual, finding that parentage under New York law derives from biology or adoption. The Court distinguished Matter of Shondel J. v. Mark D., 7 N.Y.3d 320 (2006), which addressed paternity by estoppel for child support purposes, stating it did not overrule or erode Alison D. The Court emphasized the importance of a bright-line rule to provide certainty for parents and children. The Court stated that any change in the meaning of “parent” under the law should come from legislative enactment. As the Court stated, “Alison D., in conjunction with second-parent adoption, creates a bright-line rule that promotes certainty in the wake of domestic breakups otherwise fraught with the risk of disruptive . . . battle[s] over parentage.“

    However, the Court addressed the unique circumstance of the Vermont civil union. Under Vermont law, partners in a civil union have the same rights and responsibilities as spouses in a marriage, including those related to children born during the union. Citing Miller-Jenkins v. Miller-Jenkins, 912 A.2d 951 (Vt. 2006), the Court recognized that Vermont law would consider Debra H. a parent of M.R. because the child was born during the civil union. The Court then invoked the doctrine of comity, which allows one state to defer to the laws and policies of another. The Court reasoned that recognizing Debra H. as M.R.’s parent due to the Vermont civil union would not conflict with New York’s public policy, given that New York allows second-parent adoption for same-sex couples. The Court stated, “New York will accord comity to recognize parentage created by an adoption in a foreign nation… We see no reason to withhold equivalent recognition where someone is a parent under a sister state’s law.” Accordingly, the Court reversed the Appellate Division’s order and remitted the case to Supreme Court for a best-interest hearing to determine visitation and custody, with Debra H. recognized as M.R.’s parent under New York law for the purpose of standing.

  • Nicholson v. Scoppetta, 3 N.Y.3d 357 (2004): Neglect and Removal Standards in Domestic Violence Cases

    3 N.Y.3d 357 (2004)

    A child is not automatically considered neglected under New York law solely because they witnessed domestic violence against a parent; removal requires particularized evidence of imminent risk to the child’s well-being and consideration of less drastic alternatives.

    Summary

    This case addresses certified questions from the Second Circuit regarding New York’s child neglect laws in the context of domestic violence. The plaintiffs, mothers who were victims of domestic violence, claimed the City of New York’s Administration for Children’s Services (ACS) improperly removed their children. The court clarified that witnessing domestic violence alone doesn’t automatically constitute neglect, and removal requires a fact-specific inquiry, balancing the child’s best interests against the trauma of removal. It emphasized the need for particularized evidence and consideration of alternatives before removing children from their homes.

    Facts

    Sharwline Nicholson and other mothers, victims of domestic violence, filed a class action lawsuit against ACS, alleging that ACS had a policy of removing children from mothers who were victims of domestic violence, deeming the children neglected solely because they were exposed to the violence. The mothers claimed these removals occurred without probable cause or due process, violating their constitutional rights.

    Procedural History

    The United States District Court for the Eastern District of New York certified two subclasses: battered custodial parents and their children. The District Court granted a preliminary injunction, preventing the City from separating mothers and children solely because the mother was a victim of domestic violence. The Second Circuit affirmed the District Court’s conclusion that ACS’s practices raised constitutional questions but certified questions to the New York Court of Appeals to clarify relevant state law.

    Issue(s)

    1. Whether the definition of a “neglected child” under N.Y. Family Ct. Act § 1012(f), (h) includes instances in which the sole allegation of neglect is that the parent or other person legally responsible for the child’s care allows the child to witness domestic abuse against the caretaker?

    2. Can the injury or possible injury, if any, that results to a child who has witnessed domestic abuse against a parent or other caretaker constitute ‘danger’ or ‘risk’ to the child’s ‘life or health,’ as those terms are defined in the N.Y. Family Ct. Act §§ 1022, 1024, 1026-1028?

    3. Does the fact that the child witnessed such abuse suffice to demonstrate that ‘removal is necessary,’ N.Y Family Ct. Act §§ 1022, 1024, 1027, or that ‘removal was in the child’s best interests,’ N.Y. Family Ct. Act §§ 1028, 1052(b)(i)(A), or must the child protective agency offer additional, particularized evidence to justify removal?

    Holding

    1. No, because more is required for a showing of neglect under New York law than simply the fact that a child was exposed to domestic abuse against the caretaker.

    2. Yes, emotional injury from witnessing domestic violence can establish an “imminent danger” or “risk” to a child’s life or health, potentially warranting removal, but it is not presumptively so.

    3. No, witnessing abuse alone is not sufficient to justify removal; the child protective agency must offer additional, particularized evidence to justify removal.

    Court’s Reasoning

    The court emphasized that Family Court Act § 1012(f) requires proof of both actual or imminent impairment to the child’s physical, emotional, or mental condition and a causal connection between this impairment and the parent’s failure to exercise a minimum degree of care. The court stated, “Thus, a party seeking to establish neglect must show, by a preponderance of the evidence (see Family Ct Act § 1046 [b] [i]), first, that a child’s physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired and second, that the actual or threatened harm to the child is a consequence of the failure of the parent or caretaker to exercise a minimum degree of care in providing the child with proper supervision or guardianship.” The court noted that determining whether a mother exercised a “minimum degree of care” must consider the risks she faces as a battered woman. As to removals, the court outlined the four ways a child may be removed from the home, emphasizing that emergency removal without a court order is appropriate only where the danger is so immediate that the child’s life or safety will be at risk before an ex parte order can be obtained. The court stressed that no blanket presumption favoring removal should exist, and the court must weigh the imminent risk to the child against the harm removal might bring. It must determine which course is in the child’s best interests. As to the process for removals, the court stated that “under the Family Court Act, there can be no ‘blanket presumption’ favoring removal when a child witnesses domestic violence, and that each case is fact-specific.” The Court clarified that particularized evidence must exist to justify a removal determination, including consideration of efforts made to prevent removal and the impact of removal on the child.

  • McGlinchey v. Wilson, 6 N.Y.3d 372 (2006): Terminating Grandparent Visitation Based on Changed Circumstances

    McGlinchey v. Wilson, 6 N.Y.3d 372 (2006)

    A court may modify or terminate a grandparent visitation order upon a showing of a subsequent change of circumstances where the continuation of visitation is no longer in the child’s best interest, even if the initial order was based on a stipulation.

    Summary

    This case concerns a dispute over grandparent visitation rights. After an initial order stipulating visitation between grandparents and their grandchild, the parents sought to terminate visitation, citing a change in circumstances due to increased animosity and stress adversely affecting the child and her mother. The New York Court of Appeals affirmed the Appellate Division’s decision to terminate visitation, holding that the parents demonstrated a sufficient change in circumstances to warrant modification, and that continuing visitation was no longer in the child’s best interest because of the high level of family dysfunction.

    Facts

    The Wilsons (parents) and McGlincheys (grandparents) were estranged. The grandparents filed a petition for visitation with their four-month-old granddaughter. A court order was entered based on a stipulation allowing the grandparents eight hours of visitation per month, with the expectation of therapeutic family counseling, which never occurred. Months later, the Wilsons petitioned to terminate visitation, alleging that the visits were a disaster, the grandparents were bullying them, and discontinuing visitation would be in the child’s best interest. The grandparents opposed the petition and sought visitation with the Wilsons’ younger daughter as well.

    Procedural History

    The Family Court dismissed the Wilsons’ petition to terminate visitation with the older child and denied the grandparents’ cross-petition for visitation with the younger child. The Appellate Division modified the Family Court’s order, granting the Wilsons’ petition and vacating the visitation order, finding that the child, her mother, and grandmother suffered emotional distress due to increasing tension between the parties. The grandparents appealed to the New York Court of Appeals.

    Issue(s)

    Whether the Appellate Division erred in modifying the Family Court’s order and terminating the grandparent’s visitation rights based on a change of circumstances.

    Holding

    Yes, because the Appellate Division’s finding that the exacerbated levels of animosity and stress, along with their negative impact on the child and her mother, represented a change necessitating termination of visitation more closely comported with the weight of the evidence.

    Court’s Reasoning

    The Court of Appeals recognized the fundamental right of parents to make decisions concerning the care, custody, and control of their children, citing Troxel v. Granville. While New York law acknowledges the value of grandparent relationships, it does not create an absolute right to visitation. Modification of a visitation order requires a showing of a subsequent change of circumstances and that the modification is required. While extraordinary circumstances are not required, the ultimate standard remains the best interests of the child. Relevant considerations include the fitness of the parties, the nature and quality of the relationships, and the existence of a prior agreement. The court emphasized that, “the standard ultimately to be applied remains the best interests of the child when all of the applicable factors are considered.”

    The Court found the evidence showed a deterioration of the relationship between the parents and grandparents after the initial visitation order. Specifically, the court noted the testimony of Carol Wilson’s therapist, who stated that Carol suffered from post-traumatic stress as a result of the visitation and that her tension and anxiety affected her ability to parent. The Law Guardian also opined that the stress experienced by Carol carried over to the child, negatively impacting her. Although “visits with a grandparent are often a precious part of a child’s experience,” this interest must yield where the family circumstances render the continuation of visitation not in the child’s best interest. The Court concluded that shielding the child from the animosity and dysfunction was in the child’s best interest.