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Father Petitions to Obtain Custody of Child Born Out of Wedlock


A New York Family Lawyer said that, in a child custody proceeding pursuant to Family Court Act article 6 for custody of the subject child, the petitioner appeals from an order of the Family Court, Nassau County, dated April 27, 1989, which, after a hearing, dismissed the petition.

A New York Custody Lawyer said that this proceeding involves a natural father’s effort to gain custody of his daughter born out of wedlock on July 31, 1988, from the respondent Nassau County Department of Social Services (hereinafter the Department) to whom the child has been entrusted since her birth pursuant to her natural parents’ consent. The subject 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.

A Staten Island Family Lawyer said that, meanwhile, on August 5, 1988, 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 custody. After an order of filiation was entered, the petitioner commenced the instant proceeding for custody of his daughter on September 8, 1988. 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, inter alia, 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.

The issue in this case is whether a sufficient demonstration of extraordinary circumstances has been made to justify an inquiry into the child’s best interests.

A Staten Island Child Custody Lawyer said in denying the petitioner father’s application for custody the Family Court erroneously placed the burden upon him to demonstrate his fitness as a parent. The principles governing 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 full 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, i.e., 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.

Our review of the record reveals that the Department has failed to carry its burden. 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 full 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.

Our dissenting colleagues, 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, Nassau County, for a hearing to determine custody solely based on the best interests of the child. The cases upon which our 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 § 1046(a)(iii) 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 § 1046(a)(iii) 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.

Since the Department never brought a neglect petition against the petitioner, we seriously question the relevance of borrowing the reasoning adopted in cases involving the question of neglect. However, what is eminently clear is that even a prima facie finding of neglect must be based upon proof of repeated prenatal drug use from which one may infer postnatal drug use sufficient to pose a risk of danger to the child after birth. The dissenters would have us find exceptional circumstances sufficient to warrant our interference in the family based upon the father’s admission that he used cocaine at a time remote from the child’s birth. This finding is based upon a somewhat distorted analysis of the record. Consequently, we simply cannot share their view.

In the first instance, the dissenters intimate that the father used drugs during the period he cohabited with the mother. However, the record is equivocal on this point. There is testimony from one of the caseworkers that the father admitted using cocaine and that he claimed he separated from the mother because of her drug use. Conversely, in the probation report the mother denied ever living with the petitioner but claimed the main conflict between the petitioner and herself concerned her drug use. The mother claimed the petitioner had no history of drug or alcohol abuse. The probation report further reflects a statement of the father that he suspected the mother had a drug problem but she never used drugs in his presence.

On this meagre record we simply cannot conclude that the father’s occasional use of drugs prior to the child’s birth renders him an unfit parent. Nor may we attribute responsibility to the father for the mother’s prenatal drug use, her admitted addiction to cocaine, and the finding of neglect entered against her, and thereby leap the logical gap in this reasoning to find the presence of extraordinary circumstances sufficient to mandate a best interest’s inquiry.

The petitioner has continually exhibited an interest in and concern for the child, particularly demonstrated by his persistence in seeking to obtain custody. The infrequency of the petitioner’s visitation with the child should not be held against him in light of testimony that he did not have a car and the difficulty of traveling in Nassau County without one. It also bears noting that the Law Guardian representing the child’s interests at the hearing concluded that the petitioner was capable of caring for the child and he further concluded that the petitioner’s application for full custody of the child should be granted.

In reaching our determination that the petition should be granted, we are not unmindful of the damaging effect of regular drug use on one’s ability to parent, or the terrible consequences to children exposed to cocaine in utero. The instant case, like all others of its kind, has strong emotional appeal. We must, however, exercise a reasoned and careful review of the record in determining each case of this kind on its own peculiar facts and thereby avoid the danger posed by our dissenting colleagues’ analysis. The dissenters engage in what is in essence a best interest’s analysis notwithstanding the absence of extraordinary circumstances, and demand that the petitioner father prove his fitness as a parent. We must diligently avoid raising the court’s role as parens patriae of the child to supplant the natural parent’s right to custody where no adequate grounds have been demonstrated. In so doing, we avoid running afoul of the principle that “the State may not deprive a natural parent of her [or his] child’s custody merely because a court or social agency believes it can decide more wisely than the parent or believes it has found someone to better raise the child”.

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 article 10 of the Family Court Act”. Nevertheless, a proceeding to determine 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, Nassau County, continuing custody with the Department, is reversed, and the petition is granted.

Accordingly, the court held that the order is reversed, on the law and the facts, without costs or disbursements, the petition is granted, and custody of the subject child is awarded to the petitioner.

If you wish to regain sole custody of your child, seek the assistance of a Nassau Child Custody Attorney and/or Nassau Order of Protection Attorney at Stephen Bilkis and Associates.

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