• The
person performed parental functions to a significant degree; and
• The person formed a parent-child bond with the child.
The legislation provides that such a de facto parent cannot be a grandparent, or an individual whose relationship with the parent is based on payment by the parent,
or any person who was not an intimate partner of the
parent. The legislation has been proposed because, as
we often see in our practice, children can form a strong
tie with an individual who has functioned as a parent to
them, such as a stepparent, or a long-term same-sex or
opposite-sex boyfriend or girlfriend of their own parent.
If the relationship ends between the child’s parent and
this individual, and no biological parent-child or adoptive relationship exists, the child may be deprived of all
contact with him or her, and of the caregiving that he
or she provided to the child. This is because New York
law permits only siblings and grandparents to file a petition seeking visits with a child over the objection of
his/her parent, not other individuals. See Alison D. v.
Virginia M., 77 N.Y.2d 651, 654-655, 569 N.Y.S.2d 586,
587 (1991) (finding that petitioner, the former samesex partner of the child’s biological mother, “a biological stranger” to the child, and determining that she did
not have standing to seek visitation with the child under
Domestic Relations Law § 70, despite her “established
relationship” with the child, who called both her and
respondent “mommy,” after the parties separated when
the child was two-and-a-half years old, and the respondent began restricting the child’s contact with petitioner
when he was approximately six years old). Moreover,
the law in New York provides standing for a custody application to the court in a litigation between a parent
and a non-parent only where the non-parent can demonstrate that “extraordinary circumstances” exist, which
is an extremely difficult legal burden to meet. Thus, legislation of this nature has been proposed for years, so
that children, and their de facto parents, are not denied
the opportunity to obtain a court order that continues a
relationship that has been central in the children’s lives.
agency authorized by law, or (5) the representative of a deceased/incapacitated person who otherwise could maintain a petition.
Proceedings under the Act may be brought in Supreme,
Family or Surrogate’s Court, except proceedings for a de
facto parent which may be brought in Supreme or Family
Court.
2. Ongoing Discussions Regarding How the Child-Parent Security Act Would Affect Our Practice?
As we all know from first-hand experience, CLCNY has
had many cases where the provisions of this bill could
come into play. The Working Group will continue to track
and discuss the legislation. Also, the bill presently does not
include a specific provision in the legislation that requires
a petitioner seeking a de facto judgment of parentage to
demonstrate that such an order is in the child’s best interests. Although “best interests” is an amorphous concept,
it is one with which Family Courts are very familiar and
can apply based on the facts of a particular case. Thus,
the Working Group will continue will continue to gather
examples from our practice that may be relevant to how
the bill is crafted, particularly in terms of ensuring our clients voice is considered and heard in this legislation. For
those who have additional feedback or cases that are relevant to the proposals, please feel free to reach out to me
or Melanie Tharamangalam West in the Brooklyn office,
as we are gathering examples of cases in our practice that
are relevant to the Working Group’s discussion of the bill.
A judgment of parentage under the bill’s provisions may
be sought by a petition of (1) a child, (2) a parent, (3)
a “participant,” which includes the intended parent, (4)
a support/enforcement agency or other governmental
Fall/Winter 2013 CLCNY? 9?