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Father Petitions for Custody of Child Born Out of Wedlock


A New York Family Lawyer said this proceeding involves a natural father’s effort to gain child custody of his daughter born out of wedlock, from the respondent Nassau County Department of Social Services to whom the child has been entrusted since her birth pursuant to her natural parents’ consent. The child was born with a positive toxicology for cocaine and exhibiting withdrawal symptoms. Neglect proceedings were commenced against the natural mother based upon her admitted drug addiction. Although the petitioner was identified in the neglect petition as the infant’s father, he was not a named respondent. The natural mother eventually consented to a finding of neglect.

Meanwhile, a New York Custody Lawyer said only three days after he consented to the child’s temporary placement with the Department and five days after the child’s birth, the petitioner brought a proceeding for an order of filiation declaring him to be the child’s natural father and also sought child custody. After an order of filiation was entered, the petitioner commenced the instant proceeding for child custody of his daughter. Following a hearing at which the only witnesses were two caseworkers who were involved in the neglect proceedings initiated against the natural mother, the Family Court concluded that the father had failed to demonstrate that he would be a proper custodian for the infant and the child would be at risk in the petitioner’s custody. The court’s determination appeared premised primarily upon the father’s admission to the caseworkers that until several months prior to the child’s birth he was an occasional recreational user of cocaine and further upon the testimony of one of the caseworkers that the petitioner’s home was in need of repairs. Notably, the court’s decision was contrary to the recommendation of the Law Guardian appointed by the court to represent the child’s interest. This appeal ensued.

A Queens Family Lawyer said the critical issue presented is whether a sufficient demonstration of extraordinary circumstances has been made to justify an inquiry into the child’s best interests. In denying the petitioner father’s application for child custody, the Family Court erroneously placed the burden upon him to demonstrate his fitness as a parent. The principles governing child custody disputes between a natural parent and a third person are firmly established in the decisional law. A natural parent has a claim to the custody of his or her child superior to that of all others, unless he or she has abandoned that right or is proved unfit to assume the duties and privileges of parenthood.

Custody disputes of this kind involve a two-step analysis. First, there must be a threshold showing of surrender, abandonment, persisting neglect, unfitness or other like extraordinary circumstances to justify the State’s intrusion into the family domain. Until the threshold of extraordinary circumstances has been satisfied, the second prong of the analysis, the question of the child’s best interests, is not reached. In this regard, the burden of demonstrating the existence of extraordinary circumstances so as to trigger the need for a best interests hearing is upon the party seeking to deprive the natural parent of custody.

A Queens Child Custody Lawyer said a review of the record reveals that the Department has failed to carry its burden. There is no evidence of any of the extraordinary circumstances. Specifically, the Court of Appeals held that the prolonged separation of the child and the natural parent may constitute an extraordinary circumstance requiring inquiry into the best interests of the child. While it is true that the petitioner initially relinquished provisional custody of the child to the Department at a time when there was no order of filiation upon which he could base a claim to custody, and the child has not been in her father’s custody since her birth more than two years ago, the extended period of separation was not due to an abandonment of the child by the petitioner nor even to a lack of interest or concern in the child’s welfare on his part. Indeed, nearly from the day of the child’s birth, the petitioner has persisted in his efforts to obtain child custody. The period of separation is in large measure attributable to the pace of the instant proceedings, a circumstance over which the petitioner could exercise virtually no control. The Department should not be permitted to deprive the natural parent of custody over an extended period of time and then oppose the custody application of the parent, claiming the prolonged separation constituted an extraordinary circumstance. Adopting such a position would provide an incentive for the nonparent respondent to prolong the custody proceeding in the hope of gaining an advantage over the natural parent. In sum, under circumstances such as these, although the initial relinquishment of custody was with the natural parent’s consent, the separation between the natural parent and the child does not rise to the level of an extraordinary circumstance triggering a best interest inquiry.

Additionally, the record does not clearly demonstrate that the petitioner was unfit to assume the duties of parenthood. The evidence showed that the petitioner was gainfully employed, serious about his responsibilities as a father, and lived in a stable environment with his mother and sister, the latter of whom had agreed to care for the petitioner’s daughter if he gained custody. The one-family, three-bedroom house where the petitioner resided was described in the hearing testimony of one of the caseworkers as in need of repair but neat and clean. Nothing in the record supports the Family Court’s finding that the house was dilapidated. Although the petitioner admitted to the caseworkers that he had been an occasional recreational drug user, he claimed to be drug-free, having discontinued his drug usage four months prior to the child’s birth. The Department proffered no evidence that the petitioner was then or ever had been addicted to drugs, was a regular or habitual user of drugs, or was otherwise chemically impaired.

The dissenting, while recognizing the apparent inequity in holding a father responsible for a mother’s prenatal drug use which resulted in an at-birth positive toxicology for cocaine in the child, nevertheless propose that very result. The dissenters conclude that the mother’s prenatal drug use, the child’s positive test result for cocaine, and the father’s admitted infrequent use of cocaine during a period more than four months prior to the child’s birth, constitute sufficient extraordinary circumstances to warrant remitting this matter to the Family Court for a hearing to determine custody solely based on the best interests of the child. The cases upon which the dissenting colleagues rely in urging this result involve primarily statutory causes of action for neglect based upon parental regular and excessive prenatal and postnatal drug and/or alcohol use. A child’s positive testing for drugs at birth considered in combination with other evidence indicative of repeated use of drugs by the mother has been held to establish a prima facie case of neglect. In neglect cases, Family Court Act further provides that a prima facie case of neglect can be established by proof of repeated use of a drug that could be expected to produce in the user a substantial state of stupor, unconsciousness, intoxication, hallucination, disorientation, or incompetence, or a substantial impairment of judgment, or a substantial manifestation of irrationality. Once Family Court Act has been triggered, an adjudication of neglect can be based upon proof that there exists a substantial risk of impairment if the child is in the subject parent’s care. In this regard, evidence of prenatal use of drugs may support a finding of neglect on the theory that the parent would be unable to provide adequate supervision and care subsequent to the birth of the child because of the likelihood of the continued use of drugs.

If the Department believed the petitioner to be an unfit father, it was obligated to make a sufficient showing in this proceeding of extraordinary circumstances, or to commence a neglect proceeding against him. In order to provide meaningful protection to a child, a court should not await broken bone or shattered psyche before extending its protective cloak around that child pursuant to the child neglect provisions of the Family Court Act. Nevertheless, a proceeding to determine child custody between a parent and a third person is not the appropriate method to determine the question of neglect, particularly where the evidence falls far short of demonstrating prima facie that a child is being neglected or is in danger of neglect. Accordingly, the order of the Family Court continuing custody with the Department is reversed, and the petition is granted.

Parents have the obligation to protect their children any way possible. If you know a parent who neglected their children or caused their child’s suffering, consult the Nassau County Family Lawyer together with the Nassau County Custody Attorney or the Nassau County Child Visitation Attorney from Stephen Bilkis and Associates to help those children.

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