Published on:

Father Fights for Custody of Eighteen Month Old

A New York Family Lawyer said the Child was born on October 22, 2002 and came into the custody of Department of Social Services (DSS) who placed her with the foster parents on October 24, 2002. The Child has always resided with the foster parents. DSS did not have any contact with the case worker during the months of October and November of 2002. Between November 2002 and January 2003, the Court finds that the second DSS case worker attempted, on approximately six occasions, to have direct contact with the father, by calling him number and leaving messages for him. The father’s number had been given to DSS by the first case worker.

It was not until sometime in January 2003 that the case worker was in fact able to have telephone contact with the father when he answered the telephone. In January of 2003 he was advised of his need to plan for the Child. His response was to give the caller, the DSS worker, an incorrect last name. The court credits the testimony of the case worker that during this first conversation in January 2003, in response to the revelation that first caseworker had named him as the father, he responded “about time.” Thus, the court finds that he had actual knowledge of the existence of the three month old Child and he acknowledged that he was the father during the same conversation. The case worker wrote the address she had been given.

A New York Divorce Lawyer said the court does not credit the father’s testimony that it was not until four months later, in May of 2003, that it was he who had initiated the first contact with DSS by making a telephone call. Neither is it credible that the father never received any telephone messages left for him by case worker at his number or that the conversation in January 2003, about which the caseworker testified to at length, never took place.

A Bronx Family Lawyer said that rather the court finds that the first contact between the father and DSS did in fact take place in January 2003, as the result of DSS’s attempts to contact him. It was the persistence of DSS that resulted in the father finally answering his telephone. The court finds that from January 2003 when DSS efforts to contact him were successful until September 2003, he took no actions to work with DSS in any way. If the court were to credit his own testimony, that in June of 2003 he asked for visitation, according to this same testimony he was advised of his need to go to court. The court finds that it was not until September of 2003, as the Child was approaching her first birthday and having known of the Child’s existence since January of that year and believing himself to be the father, that he made his first affirmative, albeit tentative, outreach to the Child by calling a week after receiving the letter sent to him on September 9, 2003.

A Brooklyn Family Lawyer said when the DSS supervisor, during that telephone conversation in September, advised him to file a paternity petition in Family Court, the father’s response was that he would do so when he was able to have time off from work. The court finds that at this time he had not yet determined to take the steps necessary to obtain custody of the Child so that she could have a permanent place with him. The court finds that the testimony of the DSS workers as well as his own testimony establishes that at best, from January 2003 until September 2003, the father was ambivalent about assuming child custody.

It was only at the end of October of 2003, that the father’s behavior started to change. He attended a service plan review and appeared unannounced at DSS with a gift for the Child. On that date, he said he had filed a paternity petition in response to the case worker’s inquiry. But in fact it was not so. He did not actually file the petition to establish paternity until six days later. It was not until either the end of November or the end of December 2003 when he dropped off some clothing for the Child, that, according to the testimony of the case worker, he asked for visitation with the Child, who was then between 13 and 14 months old.

The father asserted that he first asked for visitation in June of 2003 and again on October 31, 2003. It is not disputed that his request or requests for visitation could not have been granted because the court had not issued an order establishing him as the biological father of the Child. No order could have been issued at that time because he failed to file a paternity petition until November of 2003.

By the time paternity was established pursuant to the court order, the Child was eighteen months old. It was in or around this time that the father began supervised visitation. The court finds that he has been paying child support and visiting with the child.

In the instant case, the questions of time and status are intertwined. The court finds that Domestic Relations Law (DRL) does not mandate that the court limit its review of the parent’s conduct to the six months preceding the filing of the adoption petition, or, in this case, the petition to determine status. The clear meaning of the statute is to provide the court with flexibility to be able to consider the totality of circumstances in any matter.

It may be that the six month period before the filing of an adoption petition or a request to determine the status of a parent is the critical six month period. In this recent case, the court found that despite all the obstacles placed in his way, a sixteen year old father had done all that he could do as soon as he learned of the existence of the child, to have the court determine his filiation and his application for custody and to find that he had the right to object to the adoption of his child. That court found that he had virtually moved heaven and earth as soon as he had learned of the mother’s pregnancy to assert his paternity and indeed had the right to object to the adoption of his child.

Prior to November 2003, the father was not committed to the Child. His failure to respond to the calls and letters of DSS, his refusal to give the case worker his correct name and his inability or unwillingness to take time from work to file a paternity petition until the Child was over twelve months old; all of this stalling, demonstrates to the court that he could not or would not act promptly.

It was due to his own failure to act, despite all of the outreach efforts of DSS, that he was not adjudicated the biological father of the Child until April 7, 2004. By that time the Child was eighteen months old.

Based on the foregoing, the court finds that in this case, the father’s consent to an adoption is not required. However, he does have the right to be heard in any future proceeding regarding the Child’s adoption, pursuant to Social Service Law. This provision of the statute provides that any person adjudicated by a court of this state to be a father of a child is entitled to notice of an adoption. The purpose of this notice requirement is to enable the father to be heard as to the child’s best interest. Therefore, it is hereby ordered that the Visitation and TPR (Termination of Parental Rights) petitions are dismissed.

If a child’s parents are unfit to take care of children, the government is there to fulfill their duties. However, if you think that you can raise your child accordingly and you want to regain your child’s custody, visit Stephen Bilkis and Associates and speak with the Nassau County Family Attorney or the Nassau County Child Custody Lawyer.

Contact Information