Bill S802-2013

Allows a person acting as de facto parent to apply to the supreme court for a writ of habeas corpus

Allows a person acting as de facto parent to apply to the supreme court for a writ of habeas corpus to have a minor child brought before the court.

Details

Actions

  • Jan 8, 2014: REFERRED TO CHILDREN AND FAMILIES
  • Jan 9, 2013: REFERRED TO CHILDREN AND FAMILIES

Memo

BILL NUMBER:S802

TITLE OF BILL: An act to amend the domestic relations law, in relation to allowing a person acting as de facto parent to apply to the supreme court for a writ of habeas corpus

PURPOSE OR GENERAL IDEA OF BILL: To provide to those who meet the definition of de facto parent standing to petition the court for child custody.

SUMMARY OF SPECIFIC PROVISIONS: Section one amends subdivision (a) of section 70 of the domestic relations law (DRL) by providing t.hat, in addition to either parent, a de facto parent may petition the court for guardianship or custody of a minor child. The court shall make its determination based solely on the best interest of the child. section one also adds a new subdivision (c) that provides the definition of de facto parent for purposes of section 70 of the DRL.

Section two of this act shall be effective immediately.

JUSTIFICATION: Many children develop close, loving, and even long-term relationships with the person with whom their biological parent has married or has held out to the world as their partner. This is true with regard to a relationship between a child and a stepparent or a child and t.he partner of his or her biological or adoptive parent. When adult relationships end, children are often left with the "fall-out" and too often the world a child knew changes drastically and there is a loss of consistency and stability.

This legislation attempts to promote stable and consistent parental relationships by providing legal standing to a person who can demonstrate that he or she is a de facto parent, allowing such person to petition the court for child custody.

Historically, in New York, the partner of a biological or adoptive parent who has been seen by the child of such biological or adoptive parent to be a parent or de facto parent had no legal standing to petition the court in order to continue a relationship with that child should he or she separate or divorce from the biological or adoptive parent.

However, in considering the best interest of the child to be paramount, the court recently recognized plaintiffs parental right to continue her relationship with, and financial obligation for, the biological children of her partner, the defendant. (Beth R. v. Donna M. 853 N.Y.S. 2d 501 (2008). In determining that the children would suffer both emotional and financial harm should the plaintiff, who in every way was seen as the children's parent, be prevented from continuing her parental relationship with them, the court did not prevent the plaintiff from seeking custody.

In many states, including Maine, Maryland, Massachusetts, New Jersey, New Mexico, Pennsylvania, Rhode Island, Washington and Wisconsin, a de facto parent (in some cases referred to as a psychological parent or equitable parent) has legal standing to petition the court for custody, shared or otherwise, in order to maintain the close relationship that was forged with the child. Many such states apply a four part test, determine if a person qualifies as a de facto parent. This legislation utilizes the same test in the definition of de facto parent. A de facto parent is defined as a person who: has a relationship with a minor child that was formed with the consent of the legal parent and fostered by such legal parent; lived with such minor child; performed parental functions for such minor child to a significant degree; and formed a parent-child bond with such minor child. Importantly, a relationship based upon payment by the legal parent shall, preclude a person from establishing de facto parent status.

In 1991, then Chief Judge Judith Kaye wrote in a dissenting opinion, "In recognizing the superior right of a biological parent to the custody of her child when there is a conflict, the best interest of the child has always been regarded as superior to the right of parental custody. A child is a person, and not a subperson over whom the parent has an absolute possessory interest." (Matter of Alison D. v. Virginia M., 77 N.Y.2d 651, 660, quoting Matter of Bennett, v. Jeffreys, 40 N.Y 2d 543, 546.)

As a person, every child has certain rights. The right to maintain a relationship with a de fact,o parent is one of them. It may not be an acknowledged constitutional right, but as we know, not all rights axe contained in the constitution or, for that matter, in anyone document. For example, rights enumerated in the Bill of Rights and the Declaration of Independence are rights that are not contained within the constitution. (See Webster v. Ryan, 729 N.Y.S. 2d 315.) A child has the right to retain a close, parent-like relationship with the person with whom they have come to know and love; a relationship that was once fostered by his or her biological or adoptive parent. It is only right to now legally provide, an opportunity for such relationships to continue. This legislation grants those who meet the definition of de facto parent, standing to petition the court in order to continue such a parent-like relationship with the child's best interest being the primary concern.

It may seem like a great leap to acknowledge that children have certain legal rights. However, if time has shown us anything, it has shown us that rights we now take for granted, rights we now consider to be basic and fundamental, were rights that often required a change to the law; rights for which there was often a struggle in order to bring about such change. Rights of equality, such as voting and the absence of segregation, we now take for granted. However, not too long ago in New York State, grandparents did not, have standing to petition the court for visitation and custody of their grandchildren. Now, section 72 of the domestic relations law permits grandparents who can demonstrate certain criteria to the satisfaction of the court to petition the court for visitation or custody of their grandchildren. Importantly,

however, the best interest of the child is the overriding factor and the most important issue.

New York already has many laws that may be viewed as the state intruding upon a parent's right to control the upbringing of his or her child. From seat belt laws to laws that allow Family Court to place a child in state custody to laws that determine the number of days each year that a child must attend school. The state has historically exercised its capacity as parens patriae (parent of the country).

Moreover, in Alison D. v. Virginia M., Judge Kaye wrote that it is now up to the legislature to amend the laws regarding standing so that those who have had a close parental relationship with a child may petition for custody. Amending the domestic relations law to provide standing to de facto parents is long overdue.

PRIOR LEGISLATIVE HISTORY: 2011-12: Died in Children and Families. 2010: S.7969 Referred to Children and Families.

FISCAL IMPLICATION: None.

EFFECTIVE DATE: Immediately.


Text

STATE OF NEW YORK ________________________________________________________________________ 802 2013-2014 Regular Sessions IN SENATE (PREFILED) January 9, 2013 ___________
Introduced by Sen. PARKER -- read twice and ordered printed, and when printed to be committed to the Committee on Children and Families AN ACT to amend the domestic relations law, in relation to allowing a person acting as de facto parent to apply to the supreme court for a writ of habeas corpus THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. Subdivision (a) of section 70 of the domestic relations law, as amended by chapter 457 of the laws of 1988, is amended and a new subdivision (c) is added to read as follows: (a) Where a minor child is residing within this state, either parent OR DE FACTO PARENT may apply to the supreme court for a writ of habeas corpus to have such minor child brought before such court; and on the return thereof, the court, on due consideration, may award the natural guardianship, charge and custody of such child to either parent OR DE FACTO PARENT for such time, under such regulations and restrictions, and with such provisions and directions, as the case may require, and may at any time thereafter vacate or modify such order. In all cases there shall be no prima facie right to the custody of the child in either parent OR DE FACTO PARENT, but the court shall determine solely what is for the best interest of the child, and what will best promote [its] HIS OR HER welfare and happiness, and make award accordingly. (C) FOR PURPOSES OF THIS SECTION, DE FACTO PARENT SHALL MEAN A PERSON WHO (I) HAS A RELATIONSHIP WITH SUCH MINOR CHILD THAT WAS FORMED WITH THE CONSENT OF THE LEGAL PARENT AND FOSTERED BY SUCH LEGAL PARENT; (II) LIVED WITH SUCH MINOR CHILD; (III) PERFORMED PARENTAL FUNCTIONS FOR SUCH MINOR CHILD TO A SIGNIFICANT DEGREE; AND (IV) FORMED A PARENT-CHILD BOND WITH SUCH MINOR CHILD. A RELATIONSHIP BASED UPON PAYMENT BY THE LEGAL PARENT SHALL PRECLUDE A PERSON FROM ESTABLISHING DE FACTO PARENT STATUS. S 2. This act shall take effect immediately.

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