BILL NUMBER: S4528

SPONSOR: PARKER
 
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 that, 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 the 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 demon-
strate 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 peti-
tion 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 func-
tions 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 abso-
lute 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 facto parent is one of them. It may not be an
acknowledged constitutional right, but as we know, not all rights are
contained in the constitution or, for that matter, in any one document.

For example, rights enumerated in the Bill of Rights and the Declaration
of Independence are rights that are not contained within the constitu-
tion. (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 legis-
lation grants those who meet the definition of de facto parent, standing
to petition the court in order to continue such a parent-like relation-
ship 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 segre-
gation, 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 an the most impor-
tant 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:

2017-18: S3468 - REFERRED TO CHILDREN AND FAMILIES
2015-16: S.1718 - Referred to Children and Families
2013-14: S.802 - Died in Children & Families
2011-12: S.2921/A.700A - Died in Children and Families.
2010: 5.7969/A.2220 - Referred to Children and Families.

 
FISCAL IMPLICATION:

None.

 
EFFECTIVE DATE:
Immediately.