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Foster Mother Moves for Custody


The child of herein parties was born in 1995, with a positive toxicology for cocaine. He was removed from his mother’s custody shortly after birth. Her parental rights were eventually terminated, as were the father’s in 1999. A New York Family Lawyer said both parents’ terminations were based on permanent neglect. During the time that the Department of Social Services (DSS) was providing services for the mother, the father was filing at least four custody proceedings. All of the father’s petitions were dismissed by the Family Court judge without a hearing. According to the trial court, the petitions were “dismissed due to [the father’s] unwillingness to partake in services recommended by [DSS].” For the years from 1995 to 1998, the father received one hour of DSS-supervised child visitation each week.

A New York Family attorney said that concerning the termination of parental rights finding, the Appellate Division held that DSS made no effort to satisfy its burden of showing that it had formulated a realistic plan that was tailored to fit the father’s circumstances. It also held that the Family Court judge “repeatedly thwarted the father’s efforts to establish the lack of any reasonable basis for the plan that was put in place. Obviously, the petition should have been dismissed at the conclusion of DSS’ case, if not earlier.” A New York Child Custody Lawyer said the Appellate Division, in finding that the Family Court judge had demonstrated hostility toward the father and his attorney, ordered that all further proceedings be conducted before a different judge.

Upon remand, the Court returned custody of the child to the father and entered a series of child visitation orders to facilitate the transition of the child back into the father’s home. During this period of time, the foster mother filed petitions seeking visitation and custody rights to the child. The Court rejected the foster mother’s claims. It found that there was no statutory, common law or constitutional basis to grant child visitation to a nonbiological, former custodian. The Court reserved on the question of whether the child has an independent constitutional right to seek visitation with his former foster mother and allowed the parties and the Law Guardian time to brief the issue. A Nassau County Family Lawyer said this decision answers that question in the affirmative. From the child’s birth in 1995 until April 2000, when he was returned to his father, the boy had lived with the foster mother for all of his life but for a few weeks.

A Staten Island Family Lawyer said the Court has concluded that a child has a fundamental right to maintain contact, over the objection of a parent, with a person with whom the child has developed a parent-like relationship. The Court also holds that this right has constitutional protection but that this right must be balanced with the unquestionable fundamental right of the parent to raise his son without undue state interference.

The judicial determination of fundamental rights has long been a subject of great debate in the legal and judicial professions. A Staten Island Family Lawyer said there is, admittedly, no consensus on either side of the debate. On the restraint side, there is no agreement on their main point, which is that rights cannot be judicially discovered or determined outside the four corners of the Constitution. On the expansionist side, there is no agreement about where rights originate or how they are determined. In fact, there is no agreement by either side as to whether any particular judge is on any particular side at any particular time. Also, a judge’s membership on either side can change, depending upon whose constitutional ox is being gored.

A judge, wading into the constitutional rights determination quicksand, must have an abiding concern that he not set himself up as a judicial legislature.

The Declaration of Independence, in its second paragraph, states: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.”

The second evidentiary source for the proposition that all of our rights are not contained in the Constitution is the Constitution itself. The Constitution, as first passed, had no bill of rights at all. The Delegates to the Convention did not believe one was necessary. It was not necessary, in the Framers’ view, because the Constitution, as written, gave the Federal Government no power to abridge any fundamental rights.

The question to be asked here is, what is the judiciary’s proper place in the rights determination business? It is clear that the Constitution does create some rights that would not be considered fundamental. It is also clear that the Constitution protects or guarantees many other rights, some of which are now universally regarded as fundamental. Finally, it is clear that other rights determined by the courts to be possessed by the people are not specified in but are protected by the Constitution. For example, the rights to travel, to marry, and to privacy are rights protected by the Due Process and Equal Protection Clauses of the Fourteenth Amendment, but they are not listed anywhere in the Constitution.

The above discussion shows that if a right exists for a child to maintain contact with a person with whom he has developed a parent-like relationship, it will not be found explicitly or inferentially set forth in the Constitution, but it need not be.

However, if such a right exists, and this Court holds that it does, that right has constitutional protection because it is a fundamental right and the Constitution protects our fundamental rights from unwarranted state intrusion or exclusion. The search for such a right must begin with the Supreme Court’s Talmudic exposition of our Constitution.

Despite the absence of a legislative road map or clearly defined constitutional sign posts or a generally accepted method of rights determinations to provide guidance, courts, since courts began, have been determining rights. These rights have been birthed from statutes, bills of rights, constitutions, natural law and the common law.

In recognizing that courts do determine rights and have been doing so for several hundred years, a court has a duty to describe what guideposts it is using when it determines that a right exists which was previously unrecognized. Admittedly, this exercise is somewhat like a ship tacking into the wind. Each jig or jag of a judicial theory thrusts off in one direction until it requires corrective action to bring the law back on course. The polestar that guides this process must first be the faithfulness of a judge to his or her oath of office, always conscious that the People are the final repository of all rights and powers. With this guide, the course of judicial decision making has moved steadily forward with a consistent expansion of the individual rights of the governed.

The concept of substantive due process, first articulated in a case, was used as a basis to overrule the Missouri Compromise. This legal concept got off to a rocky start in what is now considered the worst Supreme Court decision ever rendered. Substantive due process never really found solid, generally accepted, constitutional legs. One reason for this is that the concept was used primarily not to protect individual rights, but to protect private economic interests. However, it still had a sustained use in this fashion for some 80 years, ending, for all practical purposes.

Substantive due process got a second life when the court started ruling unconstitutional, legislation that restricted individual personal liberties as opposed to economic liberties. However, the primary criticism of the concept of substantive due process remained the same. It allows courts to “substitute their social and economic beliefs for the judgment of legislative bodies who are elected to pass laws.” For these reasons, and writing only two years after the justice would have had a hard time yoking substantive due process to a right of a married couple to obtain contraceptives from their doctor.

Any earnest search for tradition would again get derailed at the time of the passage of the Civil War amendments. The conscience of the community in 1867 had no qualms about segregated schools. In that period, several states, including New York, mandated segregated schools. It took almost 100 years for the Supreme Court to set aside this legislatively established policy on constitutional grounds. Enforcement issues, created by both de facto and de jure segregation, added an additional 40 years to the struggle to end school segregation.

If one is to look for “tradition” or some “sense of decency and fairness rooted in the community so as to be considered fundamental,” by examining the Supreme Court’s journey down that path, one must start fairly recently. Slavery, as noted, was protected in the Constitution and this “peculiar institution” certainly did not bother any judicial notion of the community’s sense of justice and decency in the first half of the nineteenth century. However these liberty rights are found, the Supreme Court’s progression of rulings on issues affecting Family privacy rights does show a fairly consistent trend. This trend expands the rights of families and individual Family members.

Consistent with the progression of Supreme Court decisions that protect, extend and expand the liberty rights of individuals and families, and within the trajectory of the developed meaning of the Constitution, would be a holding that the state cannot deny the First Amendment rights of a child to associate with another person with whom the child has developed a parent-like relationship. If a child has such a right, and the Court holds that he does, and the state extends a procedure to protect or enforce similar rights of similar persons in similar situations, but excludes the child from the due process that protects that right, then the child has been denied the equal protection of the laws.

It has been firmly established that children are persons within the meaning of the Constitution and accordingly possess constitutional rights. Precisely defining these rights has not been an easy task.

In this case, there is no claim that the state is intervening in a Family relationship for regulatory or parens patriae purposes. The narrow holding in this case is that a statutory scheme that permits court intervention to order contact between a child and a parent or his sibling or grandparent is an unconstitutional denial of a child’s right to equal protection of the laws when the law does not provide a procedure for the child to assert the same right with respect to a person with whom the child has a significant or substantial parent-like relationship. Since the Court holds that such a right is fundamental and constitutes a liberty interest under the Due Process Clause, the child must have an effective forum to assert that right.

The Supreme Court has infrequently addressed the situation where constitutional interests between parents and their children compete, either with each other or with the state. In one case, the Court held that the state’s child labor laws trumped the parent’s right to have her child engage in religious activity in public and the child’s independent right to do so. Any interpretive methodology as to how a court is to make a determination like this is missing from that case. In analogizing to the state’s authority to impose compulsory education of minors, the Court cites that “The natural rights of a parent to the custody and control of his infant child are subordinate to the power of the State, and may be restricted and regulated by municipal laws. The welfare of the child, and the best interests of society require that the State shall exert its sovereign authority to secure to the child the opportunity to acquire an education.”

In another case, the Court was called on to balance the rights of a parent to the custody and control of his or her child and the right of the child to obtain an abortion, as guaranteed by law.

In another case, the Court sought “to review important issues as to the duties of school authorities and the scope of powers of federal courts under this Court’s mandate to eliminate racially separate public schools established and maintained by state action.” The issue of a parent or a child’s right to have some say over where and how the child goes to school was completely missing from the Court’s discussion. The forced busing of a child to a distant school was an enormous governmental intrusion into a parent’s fundamental right to determine the best educational setting for the parent’s children.

This case, involving a married woman who had affairs of some duration with two other men and admittedly had a child out of wedlock, does not seem the best factual situation in which to raise an issue about disrupting “an otherwise peaceful union.” Also, a justice, by inserting at the end the phrase, “legitimate end by rational means,” puts the constitutional analysis of this case at the lowest level of scrutiny. However, the issues raised in this case and the precedents cited would support a higher level of constitutional scrutiny.

In a jurisprudence, two women in a committed relationship decided to have a child. They agreed that Virginia would be artificially inseminated and bear the child. For about two and one-half years after the child’s birth, they both raised the child as joint custodians. The parties then terminated their relationship. However, for another two or more years,

In balancing the unquestionable constitutionally guaranteed right of a parent to raise his or her child on one hand and the constitutional right of a child to maintain contact with a parent-substitute on the other hand, it will be helpful to examine other areas where a state does intrude into the parent’s constitutional right to raise his or her child free of state interference. By examining these circumstances, we can gauge the level of intrusion into the parent’s rights that are caused by recognizing this right for the parent’s child.

The historical development of Family law in America, and the expansion of individual constitutional rights by the Supreme Court of the United States and the Court of Appeals of the State of New York, give foundation to a holding that a child has a constitutional right to maintain contact with a person with whom the child has developed a parent-like relationship. Accompanying that right is also a right to the equal protection of the laws. This requires that the child have the due process necessary to claim his right. This claim can be given constitutional protection, while at the same time giving due recognition, respect and protection to a parent’s constitutional right to the custody, care and control of his or her child.

Family, as a basic community should have a harmonious relationship. Here in Stephen Bilkis and Associates, we study carefully the cases we handled especially family-related cases. Our New York Family attorneys diligently and carefully study the possible remedies, taking into consideration to exert efforts to harmonize first the scenario. We also have our New York Child Support lawyers who helps our client obtain support from those who are obliged to give.

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