TITLE OF BILL:
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
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.
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
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
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
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
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.