Articles Tagged with Guardianship

Previously, I have touched upon the rights of grandparents and non-parents in child custody and visitation or parenting time cases against parents in New York.  In my years of practice in New York City, the surrounding areas, and as a Long Island Child Custody Lawyer, I have needed to deal with these issues a number of times.  The purpose of this article is to further shine a light on the standard that the law outlines that courts should use in deciding these cases.

In order for a parent to be able to prevail against a non-parent to be awarded by a court custody or guardianship of a child, the court must find that extraordinary circumstances exist.  This standard was announced by the New York Court of Appeals in the landmark case of Bennet v. Jeffreys, 40 NY2D 543 (1976) which remains the law in New York today.  Over time, precedents decided since have helped clarify situations in which these extraordinary circumstances are deemed to exist.  The extraordinary circumstances were exemplified as:  unfortunate or involuntary disruption of custody over an extended period of time; surrender; abandonment; persisting neglect; unfitness or comparable situations.  For a non-parent, such as a grandparent, relative or family friend, to be able to proceed with the custody or guardianship case, a court must first find that these extraordinary circumstances exist.  This gives the non-parent what is called “standing” to have the case heard by a court.

If standing by the non-parent is not found to exist in the cases particular circumstances, then the case must be dismissed.  If, however the extraordinary circumstances are found to exist, then the court needs to decide whether the best interests of the child are served by awarding custody to the parent or the third party.  The Bennett v. Jeffrey’s case was guided by the principle that parents have a fundamental right to raise their own children and children have the right to be raised by their own parents, except in certain circumstances.  Continue reading

A single adult, a married couple or two adult intimate, even unmarried, partners together may adopt according to the New York Domestic Relations law.  Adoptions can be done through an authorized agency or by private placement including step parent, adult and foster parent adoptions.  Anyone that needs more information on the topic should consult with a New York or Long Island Family Law attorney to learn about their rights.  My office happens to handle such cases.

Petitions for adoptions can be filed in the Surrogates   Court or a New York Family Court.  The petition should include the names, addresses, age, marital status, religious faith (if applicable), and occupations of the proposed adoptive parents.  Similar background information about the adoptive child needs to be submitted, as well as the health and medical history of the child at birth and thereafter.  Known hereditary illnesses or conditions including any drugs or prescriptions taken by the biological mother while she was pregnant with the child should be disclosed.  Care should be taken to include any supplemental information that might have bearing on the child’s well-being including any special skills, hobbies or interests of the parents.  This kind of information can help make a court feel more comfortable about the adoption.  In the final analysis, a court needs to feel that the adoption is in the child’s best interests.

The birth certificate of the subject child should be attached to the application.  The petitioning parents will need to set forth when and how it is that the child came to be with the adoptive parent(s).  Information about the other members of the household in which the child will be living needs to be disclosed.  Anyone having legal custody of the child should be stated in the petition including their addresses.  If possible, a consent form from the birth or legal parents should be included with the application, however, consent is not always required under Domestic Relations Law Section 111 in situations such as when a parent has surrendered their child to an appropriate agency or a parent that has indicated an intent to forego their parental rights.  The consent of a child over fourteen years of age is usually necessary for the adoption.  The court reviewing the adoption application can determine whether consent is necessary for each specific case. Continue reading

Extraordinary circumstances must exist for someone who is not a parent to be able to prevail against a parent for custody or guardianship in New York.  Only if these extraordinary circumstances are found by a court to exist should the court then consider if it is in the best interests of the child(ren) for the grandparent, relative or other person to be given guardianship or custody.  Further consideration will be given below to guardianship and custody requests by grandparents or other non-parents. But first I will address the topic of grandparent rights to visitation which I have seen come up a lot in my practice as a New York City and Long Island Child Custody Attorney.

Whether or not a grandparent has “standing” to petition for visitation is the first thing that must be established for a court to decide a grandparent visitation petition.  Standing means whether or not the person has the right to be heard in court.  If the petitioning party does not have standing the case should be dismissed.  There is automatic standing if one of the parents of the child has died.  In other cases, courts need to determine if equitable circumstances, dictate that a court should intervene to hear the grandparent visitation request.  Such equitable circumstances could be extended disruption of custody by a parent, parental abandonment, physical or mental unfitness of a parent, among other scenarios.

If a grandparent is found to have standing, then a court must determine if it is in the child(ren)’s best interests for the grandparent to be given a visitation order.  Usually if it is necessary for a grandparent to petition for visitation, a parent or parents with custody are opposed to the grandparent getting a visitation order.  Because the care, custody, and control of children is considered a fundamental right of parents, there is a presumption to be given that “fit” parents are acting in the best interests of their children.  Courts are therefore supposed to give “special weight” to a fit parent’s wishes about a grandparent visitation order.  Courts still have the final decision on the matter, but the parental preference in such a situation needs to be considered by the court.  The nature and extent of the relationship that the child already had with the grandparent(s), the child’s preferences, the needs of the children, and the reasons for the opposition to the visitation should all be weighed by the court before determining whether to grant the visitation order or not. Continue reading