United States: Existing legislation and mechanisms in the State of New York to take custody of an American child in the following cases: 1) the people who hold parental authority are permanently out of the country; 2) the mother has parental guardianship and the father, who lives in the United States, has visitation rights, which must be arranged with the mother; 3) the American child has a reasonable fear of physical violence or death at the hands of the father (2012-March 2013)
Sources state that a court makes a custody decision in the best interests of a child (Barics, June 2007; InMotion 2012, 7; LawNY n.d.). Sources indicate that neither parent has a preferred right to the custody of a child (ibid.; Barics, June 2007). According to the Domestic Relations Law of the State of New York,
[w]here a minor child is residing within this state, either parent may apply to the supreme court for a writ of habeas corpus to have such minor child brought before such court; and on the return thereof, the court, on due consideration, may award the natural guardianship, charge and custody of such child to either parent for such time, under such regulations and restrictions, and with such provisions and directions, as the case may require, and may at any time thereafter vacate or modify such order. In all cases there shall be no prima facie right to the custody of the child in either parent, but the court shall determine solely what is for the best interest of the child, and what will best promote its welfare and happiness, and make award accordingly. (New York 2006, Sec.70-a)
The law provides that a child is a person under the age of eighteen years (ibid. Sec. 75-a).
In order for the court to decide the custody of a child, the child must have lived in the State of New York for six months prior to the filing for custody (LawNY n.d.). Otherwise, a parent must file for custody in the state where his or her child "most recently lived for six months" (ibid.). If a child custody determination was made by a court of another state, a court of the New York State
shall recognize and enforce a child custody determination of a court of another state if the latter court exercised jurisdiction in substantial conformity with this article or the determination was made under factual circumstances meeting the jurisdictional standards of this article and the determination has not been modified in accordance with this article. (New York 2006, Sec. 77-b)
In a 27 March 2013 telephone interview with the Research Directorate, a professor at New York University (NYU) School of Law, who is a leading expert on children's rights and family law in the United States and who created the Family Defence Clinic in New York City (NYU School of Law n.d.), stated that "if the mother has physical and legal custody, but she becomes unable to care for her child (she is in a hospital) or there are other barriers (for example, she cannot return to the country), the father will have legal right to care for the child as long as he has a desire to do so and he is fit as a parent" (Professor 27 Mar. 2013). Legal custody refers to the authority to make decisions involving a child on issues such as religion, education and medical matters (Barics June 2007; WomensLaw n.d.). Physical custody refers to the child's place of residence (ibid.; Barics June 2007). The Professor indicated that "if the father is willing to care for the child and he has never been adjudicated to be unfit, he would be next in line to care for the child (27 Mar. 2013). If he refuses to care for the child, then the child can be placed into foster care" (Professor 27 Mar. 2013). However, if the mother has a restraining order against the father,
[i]t will be taken into account when determining if the father can take care of the child. If allegations involved serious violence and if the father engaged in acts that endangered the child, it would lead the court to conclude that the parent would be unfit to care for the child.
If the father has a history of domestic violence, it is taken very seriously on the ground to be fit to care for the child. If it comes to the attention of New York authorities (courts) that the father has a record of domestic violence, the local department of social services might intervene and petition the court to deny custody to the father. In this case, the child might be placed into foster care or placed in a relative's home (paternal or maternal grandparents, uncle, aunt, etc.). (ibid.)
The professor further noted that
[d]omestic violence is a very important factor in custody court to determine fitness of a parent. It is impossible to predict what would happen without knowing all the details of the situation, but given that there is a record of domestic violence, it will not be surprising if the father will not get custody. A parent engaged in domestic violence is considered to be an unfit parent. (ibid.)
An article by J. Douglas Barics, a Long Island, New York, attorney at law, on child custody in the State of New York also states that the effects of domestic violence are taken into account by the court when making a custody determination (June 2007). Other factors considered by the court include age of parents, alcohol and drug use, availability of parents, disability and physical health, existing informal and written custodial agreements, finances of parents, findings of child neglect or abuse, home environment, mental and emotional stability of the parents, parent's observable behaviour in court, religion, preference of the child and who was or is the primary caretaker of the child (Barics June 2007). The article further indicates that "custody cases are extremely fact sensitive, and each case is decided on its own merits" (ibid.). Further information could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.
This Response was prepared after researching publicly accessible information currently available to the Research Directorate within time constraints. This Response is not, and does not purport to be, conclusive as to the merit of any particular claim for refugee protection. Please find below the list of sources consulted in researching this Information Request.
Barics, J. Douglas. June 2007. "Child Custody in New York State." <http://www.jdbar.com/PF_Articles/pf_child_custody_in_new_york.html> [Accessed 18 Mar. 2013]
InMotion. 2012. The Basics Custody and Visitation in New York State. <http://www.inmotiononline.org/assets/pdfs/TheBasicsSeries_English/ Custody_and_Visitation_in_NYS.pdf> [Accessed 2 Apr. 2013]
Legal Assistance of Western New York (LawNY). N.d. "Child Custody and Visitation Rights in New York." <http://www.lawny.org/index.php/family-self-help-140/other-family-law-self-help-75/178-child-custody-and-visitation-rights-in-new-york> [Accessed 21 Mar. 2013]
New York. 2006. Domestic Relations Law. <http://public.leginfo.state.ny.us/ LAWSSEAF.cgi?QUERYTYPE=LAWS+&QUERYDATA=@LLDOM+&LIST=LAW+&BROWSER= EXPLORER+&TOKEN=02831907+&TARGET=VIEW> [Accessed 18 Mar. 2013]
New York University (NYU) School of Law. N.d. "Biography." <https://its.law.nyu.edu/facultyprofiles/profile.cfm?section=bio&personID=19969> [Accessed 27 Mar. 2013]
Professor, New York University School of Law. 27 March 2013. Telephone interview.
WomensLaw. N.d. "What is Custody?" <http://www.womenslaw.org/laws_state_type.php?id=138&state_code=NY> [Accessed 20 Mar. 2013]
Additional Sources Consulted
Oral sources: Oral sources: Attempts to contact representatives or academics at the following organizations were unsuccessful: Embassy of the United States in Ottawa; Human Rights First, New York; Law Office of J. Douglas Barics, Garden City, NY; Mandel Law Firm, New York; McGill University Law School; New York State Office of Children and Family Services; New York Office of Court Administration; Osgoode Hall Law School, York University; University of Ottawa Law School; Vive, Inc. NGO.
Representatives of the Brent and Powell Immigration Law firm in Rochester, NY, and Human Rights First, NY, were unable to provide information.
Representatives of the Office of the Ombudsman, New York State, were unable to provide information within the time constraints of this Response.
Internet sites, including: Amnesty International; Brent and Powell Immigration Law, Rochester, NY; Columbia Law School; Cornell University Law School; Factiva; Freedom House; Human Rights First; Human Rights Watch; The Huffington Post; Law and Legal Research; LawNY; Mandel Law Firm, New York; McGill University Law School; New York Law School; New York State – Council on Children and Families, Division of Child Support Enforcement, New York Court, New York State Government Portal, New York State Unified Court System, Office of Children and Family Services, Office of the Ombudsman; New York City Office of the City Clerk; The New York Times; Oficina Legal de Jeffrey B. Peltz P.C., New York; Osgoode Hall Law School, York University; United Nations – Refworld; United States – Department of State, Library of Congress; US Senate; University of Ottawa Law School; University of Toronto Law School; Vive, Inc.; Wilfrid Laurier University law school.