VISITATION AND VISITATION AND GUARDIANSHIPGUARDIANSHIP

Children’s Law Center New York Clinic Seminar

Visitation

No Right to Visitation

• Extended family (aunts/uncles/cousins, etc.)– Stepparents– Person in a relationship but not married

to child’s parent even if he/she acted as a parent toward the child• Alison D. v. Virginia M., 77 N.Y.2d 651, 569

N.Y.S.2d 586 (1991)

Limitations on Visitation

• The non-custodial parent has the right to “reasonable visitation privileges,” the denial of which is a drastic remedy

• Visitation may be restricted when it is detrimental to the child’s physical, emotional or psychological health

• Once the need for supervised visitation is remedied, unsupervised visitation must be restored

Basis for denial/termination of

visits• Risk that contact would result in emotional harm to child

• Parent has subjected child to excessive corporal punishment

• Parent’s inappropriate behavior, e.g., verbal or physical outbursts

• Parent has exposed child to domestic violence

• Substantial likelihood that parent will abscond with child

Denial/termination cont’d

• Parent failed to establish a relationship with the child

• Deterioration of relationship between parent and child

• Parent failed to comply with the terms of court-ordered visitation

• Parent failed to attend court-ordered visits

Supervised Visitation

• Supervised visitation – not a deprivation of meaningful access to one’s child.

• The court has broad discretion in determining whether supervised visitation should be ordered

• Standard for ordering SV: Where unsupervised contact would be detrimental to the physical, emotional or psychological well-being of the child

Supervised Visitation Cont’d

• Basis for supervised visitation:

– There has been a long hiatus in parent/child contact and child does not know parent

– Supervision is necessary to ensure the child’s welfare based upon one or more of the following:• Domestic violence• Alcohol/substance abuse• Mental illness• Repeated false claims of abuse• Excessive physical/verbal abuse• Alienation• Courtroom behavior – litigant’s inability to control

anger

Types of Supervised Visitation

• Supervised with no intervention• Observation and Evaluation• Therapeutic visitation– Privately paid social worker– Supervised at an agency (CFS or

NYSPCC)• Supervision by friend or family member

Final Orders of Supervised Visitation

• Basis for a final order of supervised visitation–Parent has a mental illness and, as

a result, child requires protection–Parent’s interaction with child is

inappropriate–Parent has a recent history of

substance abuse

Conditions of Visitation• Courts may impose conditions that protect the best interests of

the children• Order for parents to attend counseling

– Courts can order therapy as part of a temporary custody or visitation order. But courts cannot make visitation conditional on a litigant’s participation/compliance with therapy

• Order that specific individual not be present during visits• Order that visits occur in a specific location• Order that non-custodial parent refrain from taking child

to a specific location• Order that the child not be exposed to a particular

religious practice or instruction that conflicts with custodian’s beliefs

• Order that parent not drink/smoke in child’s presence

Modification of Order of Visitation

• Standard – substantial change of circumstances that impacts on the best interests of the child– No hearing is required where petitioner

fails to allege a non-conclusory basis for alleging a change in circumstances

– The modification must be based on events that occurred subsequent to the issuance of the final order

Prison Visitation• Incarceration does not, by itself, preclude

visitation• Factors to consider:

• Nature of crime• Length of sentence• Parent’s pre-incarceration relationship with

child• Location of prison and travel distance• Cost of travel• Acceptable escort for child• Psychological or emotional impact on child

Grandparent Visitation• Standing

• Automatic standing - If one or more of the parents are deceased

• Equitable circumstances– Previous relationship between grandparent

and child– Grandparent made significant efforts to

establish a relationship with child that were unreasonably thwarted by parent

– Partial standing – standing with respect to one child but not the other

– Best Interests of the Child

Sibling Visitation• Sibling may seek visitation with a

sibling of whole or half-blood• Petition may be initiated by sibling or by

“a proper person on his or her behalf”• DRL 71 – follows DRL 72• Post-Adoption Visitation – Permissible where a child had a close

relationship with the grandparent or sibling prior to being adopted

GUARDIANSHIP

Jurisdiction in Guardianship Cases

• Family Court has the same authority as Surrogates Court with respect to proceedings involving guardianship of the person of a minor or infant.

• Pursuant to FCA §661, the provisions of the Surrogate Court Procedure Act (SCPA) apply to family court as long as they do not conflict with provisions of the Family Court Act (FCA).

Purpose of Guardianship

• As with orders of custody, letters of guardianship enable adults to make educational, medical and religious decisions on behalf of an infant or minor.

• College financial aid forms (FAFSA)– – unlike a child in a custodial relationship, a

child in a guardianship may be able to claim on the financial aid form that they are “independent” and therefore not required to submit the guardian’s income.

Definition of Infant/Minor

• As distinguished from Custody cases which terminate on a child’s 18th birthday, FCA § 661 was amended in 2008 to expand the definition of infant/minor to include persons between the ages of 18 and 21 years old who consent to the appointment of a guardian or the continuation of an order of guardianship

• Examples of guardianship cases involving persons over 18 years old: – Special immigrant juvenile cases

(SIJS) – the FCA was amended in 2008 in part to permit persons over 18 years old apply for SIJ findings within the context of a guardianship proceeding.

– Child Support – A minor under 21 years old is entitled to receive child support.

Who Can File for Guardianship

• Although the practices vary from courthouse to courthouse, however, there is no legal distinction between who can file for guardianship and who can file for custody: – an adult with a significant

relationship to the child.

• The petitions you will encounter frequently involve:

• Petitioners who are not blood relatives.• Biological parent(s) are deceased. • Multiple guardianship petitions filed by

relatives seeking a financial benefit, i.e., death benefits.• Parent(s) residing outside of the United States• Respondent (parent(s) are consenting to

guardianship on the record or by notarized letter• Parents in the military who have entered into a

temporary guardianship arrangement while deployed

Legal Standard – the same as in custody cases

• Parent vs. Parent – Best Interest• Non-Parent vs. Parent – Extraordinary

Circumstances• Non-Parent vs. Non-Parent – Best

Interest

When is the Consent of the minor required?

• When a child is 14 and over, they are required to complete a preference of minor form and have it notarized.

• When child is 18 and over, explicit consent is required.

Guardianship - Process• Service: – Petitioner must ensure that all parties

are properly served, however, the SPCA contains a provision that excuses service in certain situations – i.e., petitioner is unable to locate respondent.

–When a child is over the age of 18 years old there is no requirement of service.

• Investigation:– Fingerprints of the petitioner and

everyone over the age of 18 years old that resides in the home

– Criminal background check: if the petitioner or an adult residing in the petitioner’s household has a felony conviction, it is a bar to guardianship.

– ACS conducts a SCR clearance to determine whether there is a history of neglect/abuse allegation. This is not a complete bar but will be considered Matter of Ashley W. v. Verdele F.

Benefits

• Guardians are entitled to apply for:•Medicaid/health insurance•NYCHA• Food stamps and other entitlement programs

Visitation – Right to Petition

• Standing– Biological parent– Legal parent• Adoptive parent• Signed acknowledgment of paternity• Order of filiation issued

– Grandparent/DRL 72– Sibling/DRL 71

44 Court Street11th FloorBrooklyn, NY 11201TEL 718-522-3333FAX 718-522-7376Map        Directions

820 Concourse Village West, 5th FloorBronx, NY 10451TEL 718-741-3400FAX 718-741-9658Map        Directions

118-21 Queens Blvd.Suite 417Forest Hills, NY 11375TEL 718-544-3499FAX 718-544-4450Map         Directions

36 Richmond TerraceSuite 304Staten Island, NY 10301TEL 718-447-8384FAX 718-447-3893Map        Directions

Every child at the center of a court case has a unique voice. And that

voice must be heard