* Issues Relating to Children * (Note: Second most tested!)

Question 1

Termination of Parental Rights, Generally

Answer 1

• statutorily located in the social services law
• Comes at the end of a complicated process where children are initially taken away temporarily, social workers try to fix the family situation, the problem is not fixable, and there becomes a need to severe the bond between parent and child

Question 2

Court Proceeding for Termination of Parental Rights

Answer 2

• FAMILY COURT HAS JURISDICTION
• STANDARD = CLEAR & CONVINCING EVIDENCE (CCE)
• PARENT IS ENTITLED TO APPOINTED COUNSEL
• TERMINATION OF PARENTAL RIGHTS IS A PERMANENT CUT OFF –> NO VISITATION RIGHTS

Question 3

Grounds for Termination of Parental Rights (5)

MMAAP

Answer 3

• M Mental illness or developmental disabilityof the parent that makes it impossible for them to care for the child
• M Murder- parent has murdered a sibling of the child in question
• A abandonment
• A abuse of the child
• P permanent neglect

Question 4

Abandonment by Parent as Ground for Termination of Parental Rights

Answer 4

failing to visit or communicate w/ the child for at least 6 months; court must find that this evidences an intent to forgo your parental rights

Question 5

Permanent Neglect by Parent as Ground for Termination of Parental Rights

Answer 5

child has been removed from the home & is in agency care AND the parent has failed for at least 1 year to plan for the future of the child & maintain any physical contact w/ the child even though they were physically and financially capable of doing so

NOTE: incarceration for an extended period of time can be probative of neglect

Question 6

Adoption: Who can adopt in NY?

Answer 6

1- Married couple can adopt together
2- Single adult can adopt alone
3- Two unmarried cohabitants can adopt together
4- A married person can adopt their step-children
5- If you are married, but separated, you can adopt alone w/o your spouse

Question 7

Adoption: Who can be adopted in NY?

Answer 7

• Anyone—even an adult—so long as you obtain the necessary consents. [BUT not a substitute for marriage]

Consents needed for minor adoptee:
- Marital child: both biological parents UNLESS they have voluntarily surrendered the child by turning it over to state custody and filing out the necessary documents (advance consent by putting child up for adoption)

• Non-Marital Child: no consent needed from biological child EXCEPT NO ADOPTION if he expresses a willingness to assume custody; evidences a commitment to the child [note: must be done when child put up for adoption by mother, not later even if don’t find out a/b child until later]
• consent of person w/ legal custody of the minor (if not a biological parent)
• consent of adoptee if they are over 14

Question 8

Adoption Process

Answer 8

• Thorough investigation—interviews, b/g checks, and a home visit
• Policy of religious matching
• Minor adoptee gets 3 month trial period before decree entered

Question 9

Child Support Requirement

Answer 9

• BOTH biological parents are obligated to support their kids THROUGH AGE 21 and post-21 THROUGH COLLEGE if there are special circumstances
• special circumstances = financial ability on the part of the parents + intellectual ability on the part of the child

Question 10

How is child support awarded? Modified?

Answer 10

AWARDED

• all states are federally required to have guidelines
• NY statutes require the courts follow a mechanical formula that applies a fixed percentage based on the # of children and the incomes of the parents. The percentage may be modified pursuant to a variety of statutory factors if the court deems the noncustodial parent’s pro rata share of support to be unjust or inappropriate.
• Parents can agree on alternative forms of child support, but courts can overrule those agreements if they do not provide at least as much as the statutory guidelines would

MODIFIED

• discretionary; court will considere whether: (i) there has been a change of circa; and (ii) whether modification is in the best interest of the child
• can ALWAYS petition for modification if 3 years have passed since the last adjustment
• if there has been a change in either parents income by at least 15%, that will be a basis for modifying up or down

Question 11

Child Custody: What state has jurisdiction to enter a custody order?

Answer 11

• There is a uniform custody law (“the uniform child custody jurisdiction and enforcement act” UCCJEA) that has been adopted in every state other than Mass
• a state may enter an initial custody order if it is:
  1- currently the home state of the child; OR
  2- was the home state of the child w/in the last 6 months
• Home state= state where 6 has lived w/ a parent for 6 consecutive months prior to commencement of a custody proceeding

SUMMARY- the stay behind state retains jurisdiction for 6 months after the child and parent leave.

Uniform Statute ALSO says that once that initial custody order has been entered, no other state can enter a conflicting order so long as the parent and child remain in the state that issued the initial custody

NOTE: court can exercise emergency jurisdiction if the child is physically present in the state, and the child has been abandoned, or it is necessary in an emergency to protect the child. An emergency ruling should be temporary and terminate when the emergency ends.

Question 12

Standard for determining child custody?

Answer 12

BEST INTERESTS OF THE CHILD!! ALWAYS SAY THIS STANDARD IN AN ESSAY!!

Some factors include:

• Physical & mental health of the two parents
• Domestic violence—history of DV is practically automatically disqualifying
• Criminality
• Does either parent have a new companion? What kind of person is that companion?
• If the child is over 12 years old, do they have a preference?
• Would any particular placement allow siblings to remain together or preserve a relationship with other family members
• Joint Custody—Do the parents have a cooperative enough relationship? Do they live geographically close to one another?

Question 13

Custody Disputes BTW Parent and Non-Parent

Answer 13

• standard is still BEST INTERESTS OF CHILD, BUT there is a presumption that the child is better off w/ biological parent
• Non-parent ONLY WINS by showing:
  1- that the parent is unfit; OR
  2- that there are extraordinary circumstances

ex- NP won’t win if P is in drug rehab, complying w/ terms of probation, and is working w/ child service in an effort to be a good parent and get the child back

Question 14

Relocation of a Custodial Parent

Answer 14

• must get permission of the court by showing that the move is in the best interests of the child

Question 15

Visitation Rights of Non-Custodial Parent

Answer 15

• Non-custodial parent is ALMOST ALWAYS entitled to visitation b/c it is almost always in the best interests of the child
• not conditioned on paying child support
• can get visitation even if you are in prison

Question 16

Visitation Rights of a Grandparent

Answer 16

SCOTUS- parents have a due process right to raise their kids as they see fit

ROL- a grandparent seeking visitation must make a showing of SPECIAL CIRCUMSTANCES that are sufficient to establish a SUBSTANTIAL STATE INTEREST in allowing grandparent visitation. Substantial state interest overrules the DP right.

Question 17

Does the Family Court have jurisdiction to modify the child support terms of a supreme court divorce decree?

Answer 17

• FC does not have jurisdiction over divorces, separations, or annulments. These matters must be brought in the supreme court.
• FC generally has concurrent jurisdiction w/ the supreme court in support proceedings w/ some exceptions.
• In a post-divorce support modification proceeding where the original divorce decree is issued by the supreme court and CONTAINS A CLAUSE specifying that the decree be enforced or modified only in the Supreme Court, the FC will not have jurisdiction.

Question 18

Two-part test Family Court must apply in order to find that a child has been neglected and thus should be removed from the home:

NOTE– different then the requirement of permanent neglect for termination of parental rights

Answer 18

There must be a showing:
1- of near or impending danger (not merely the possibility of danger); AND
2- that the parent did not act as a reasonable parent would under the circa

Court must balance the harm that removal will cause against the risk of the child remaining in the parent’s care.