Amd §§109 & 70, add Art 7 Title 5 §§119 - 119-c, Dom Rel L; add Art 5-D Part 1 §582-101, Part 2 §§582-102 -
582-104, Part 3 §§582-105 - 582-106, amd §413, Fam Ct Act
Establishes confirmatory adoptions allowing adoption and parentage judgements for a child with more than two parents; recognizes functional parents as legal parents; allows "de facto parents" to get a court order confirming their parentage; grants all legal parents standing to seek visitation or custody of their children.
STATE OF NEW YORK
________________________________________________________________________
1787
2023-2024 Regular Sessions
IN SENATE
January 17, 2023
___________
Introduced by Sen. HOYLMAN-SIGAL -- read twice and ordered printed, and
when printed to be committed to the Committee on Children and Families
AN ACT to amend the domestic relations law and the family court act, in
relation to establishing confirmatory adoptions and allowing courts to
grant the custody and support from more than two parents
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Section 109 of the domestic relations law is amended by
2 adding a new subdivision 8 to read as follows:
3 8. "Confirmatory adoption" shall mean an adoption of a child by an
4 existing legal parent pursuant to title five of this article.
5 § 2. Article 7 of the domestic relations law is amended by adding a
6 new title 5 to read as follows:
7 TITLE V
8 CONFIRMATORY ADOPTIONS
9 Section 119. Purpose of title.
10 119-a. Eligibility to file for confirmatory adoption.
11 119-b. Procedure on application for confirmatory adoption.
12 119-c. Multi-parent adoption.
13 § 119. Purpose of title. The purpose of this title is to create a
14 streamlined adoption process for a child's parents to confirm their
15 parent-child relationship through an adoption in order to protect the
16 child's best interests. Such adoption process shall ensure all parents
17 are afforded full rights and protections equivalent to that of biolog-
18 ical parents, especially for children conceived through assisted reprod-
19 uction.
20 § 119-a. Eligibility to file for confirmatory adoption. 1. Parents of
21 a child may file a joint petition for a confirmatory adoption to confirm
22 their parentage. Those eligible include the child's intended parents as
23 defined in section 581-102 of the family court act and the current or
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD05046-01-3
S. 1787 2
1 former spouse of a birthing parent, provided that the person is named on
2 the child's birth certificate as a parent.
3 2. All living parents of a child seeking to file for confirmatory
4 adoption pursuant to subdivision one of this section shall jointly file
5 a petition for a judgment of adoption with the court and include:
6 (a) proof of marriage between the petitioners, entered into prior to
7 the birth of the child; or
8 (b) a government-issued birth certificate listing petitioners as
9 parents of the child.
10 § 119-b. Procedure on application for confirmatory adoption. 1. Along
11 with the complaint for a final judgment of adoption, an individual or
12 individuals seeking adoption shall file a petition with the court certi-
13 fying the following:
14 (a) the applicant's name or applicants' names, residential address and
15 telephone number;
16 (b) a statement by the applicant or applicants that they are seeking
17 certification by the court as a person or persons qualified to adopt the
18 child to whom they are already a legal parent;
19 (c) a statement by the applicant or applicants that all the child's
20 living parent's consent to the confirmatory adoption; and
21 (d) a written declaration signed by all parties to the action that
22 describes in sufficient detail how the child was conceived and identi-
23 fies any other involved parties so that the court may determine whether
24 those individuals have parental rights to the child.
25 2. The court shall issue a judgment of adoption confirming parties to
26 the action as the legal parents of the child without the need for an
27 appearance by the parties.
28 3. If there are any other individuals with a claim to parentage, the
29 court may determine if the parental rights of that individual have been
30 relinquished or terminated and proceed without a hearing pursuant to
31 subdivision two of this section.
32 4. The court shall, if it determines that another individual may have
33 existing parental rights to the child, order and conduct a hearing on
34 the matter, provided notice is given to all parties of the action,
35 before issuing a judgment of adoption. If the court finds there is a
36 competing claim of parentage and all parties do not consent to such
37 claim, the court shall dismiss the petition without prejudice and the
38 parties may refile their adoption petition pursuant to section one
39 hundred fifteen of this article.
40 5. The court filing fees and other certification, investigation, and
41 criminal background check requirements for private-placement adoptions
42 pursuant to section one hundred fifteen-d or one hundred sixteen of this
43 article shall not apply.
44 6. Nothing in this title shall be deemed to summarily extinguish or
45 terminate the parental rights of any individual.
46 7. The chief administrator of the court shall promulgate the necessary
47 rules to effectuate the provisions of this title.
48 § 119-c. Multi-parent adoption. 1. The termination of the parental
49 duties and responsibilities of an existing parent or parents pursuant to
50 section one hundred eleven of this article may be waived if both the
51 existing parent or parents and the prospective adoptive parent or
52 parents consent to such waiver in writing at any time prior to the
53 finalization of the adoption. Such written consent shall be filed with
54 the court.
55 2. After receipt of the waiver pursuant to subdivision one of this
56 section, if the prospective adoptive parent has already been recognized
S. 1787 3
1 to be one of more than two legal parents of the child, the court may
2 proceed with the confirmatory adoptive process pursuant to section one
3 hundred nineteen-b of this title.
4 § 3. The family court act is amended by adding a new article 5-D to
5 read as follows:
6 ARTICLE 5-D
7 PRESUMPTION OF PARENTAGE
8 PART 1. General provisions (582-101)
9 2. De facto parent (582-102 - 582-104)
10 3. Court adjudication of parentage for a child with multiple
11 parents (582-105 - 582-106)
12 PART 1
13 GENERAL PROVISIONS
14 Section 582-101. Presumption of parentage.
15 § 582-101. Presumption of parentage. (a) An individual is presumed to
16 be a parent of a child if, except as otherwise provided under section
17 581-406 of this chapter, the individual and the person who gave birth to
18 the child:
19 (1) are married to each other and the child is born during the
20 marriage, whether the marriage is or could be declared invalid;
21 (2) are married to each other and the child is born no later than
22 three hundred days after the marriage is terminated by death, divorce,
23 dissolution, annulment, or declaration of invalidity, or after a decree
24 of separation or separate maintenance, whether the marriage is or could
25 be declared invalid; or
26 (3) have married each other after the birth of the child, whether the
27 marriage is or could be declared invalid, and the individual at any time
28 asserted parentage of the child and:
29 (i) the assertion is in a record filed with a state agency maintaining
30 birth records;
31 (ii) the individual agreed to be and is named as a parent of the child
32 on the birth certificate of the child; or
33 (iii) the individual resided in the same household with the child and
34 openly held out the child as the individual's own child from the time
35 the child was born or adopted and for a period of at least two years
36 thereafter, including any period of temporary absence.
37 (b) A presumption of parentage under this section may be overcome, and
38 competing claims to parentage may be resolved, only by an adjudication
39 under section 582-105 of this article.
40 PART 2
41 DE FACTO PARENT
42 Section 582-102. Definitions.
43 582-103. Eligibility for a de facto parent to file for a judg-
44 ment of parentage.
45 582-104. Procedure for a de facto parent to file for a judgment
46 of parentage.
47 § 582-102. Definitions. As used in this article, the following terms
48 shall have the following meanings:
49 (a) "Parentage" means the continuing relationship between a child and
50 their parents, which can be shared, in certain circumstances, by more
51 than two parents, each having a degree of responsibility.
52 (b) "De facto parent" means a person who exercised parental responsi-
53 bility for the child and acted in a parental role from birth, or for at
54 least one year, to have established a bonded and dependent relationship
55 with the child that is parental in nature.
S. 1787 4
1 § 582-103. Eligibility for a de facto parent to file for a judgment of
2 parentage. (a) In a proceeding to adjudicate parentage of a person who
3 claims to be a de facto parent of the child, if there is only one other
4 person who is a parent or has a claim to parentage of the child, the
5 court shall adjudicate the petitioner to be a parent of the child if the
6 person demonstrates by clear and convincing evidence that:
7 (1) The person resided with the child as a regular member of the
8 child's household from the child's birth, or for at least one year,
9 unless the court finds good cause to accept a shorter period of resi-
10 dence as a regular member of the child's household;
11 (2) The person engaged in consistent caretaking of the child which may
12 include regularly caring for the child's needs and making day-to-day
13 decisions regarding the child individually or cooperatively with another
14 legal parent;
15 (3) The person undertook full and permanent responsibilities of a
16 parent of the child without expectation of financial compensation;
17 (4) The person held out the child as their own;
18 (5) Another person consented to, and fostered, the petitioner's forma-
19 tion and establishment of a parent-like relationship with the child;
20 (6) The person established a bonded and dependent relationship with
21 the child that is parental in nature; and
22 (7) Continuing the relationship between the person and the child is in
23 the best interest of the child.
24 (b) In a proceeding to adjudicate parentage of a person who claims to
25 be a de facto parent of the child, if there is more than one other
26 person who is a parent or has a claim to parentage of the child and the
27 court determines that the requirements of this section and section 582-
28 106 of this article are satisfied, the court shall award parentage to
29 the person claiming to be a de facto parent, provided the adjudication
30 of a person as a parent under this section shall not disestablish the
31 parentage of any other parent, nor limit any other parent's rights
32 pursuant to any other law of the state.
33 (c) An existing parent of the child may use evidence of duress, coer-
34 cion or threat of harm to contest an allegation that the person seeking
35 to be adjudicated as a parent fostered or supported a bonded and depend-
36 ent relationship as described in this section. Such evidence may
37 include:
38 (1) Whether within a ten-year period preceding the date of the
39 proceeding, the person seeking to be adjudicated as a de facto parent:
40 (i) has been convicted of domestic assault, sexual assault or sexual
41 exploitation of the child or a parent of the child;
42 (ii) has been convicted of a family violence crime, as defined by
43 title O of the penal law, and is or has been subject to an order of
44 protection issued by a family court; or
45 (iii) was found by a court to have committed abuse against the child
46 or a parent of the child;
47 (2) A sworn affidavit from a domestic violence counselor or sexual
48 assault counselor, provided the person who had confidential communi-
49 cations with the domestic violence counselor or sexual assault counselor
50 has waived the privilege; or
51 (3) Other credible evidence of abuse against the parent of the child
52 or the child, including, but not limited to, the parent's or child's
53 sworn affidavit or an affidavit from a social services provider, health
54 care provider, clergy person, attorney, or other professional from whom
55 the parent or child sought assistance regarding the abuse.
S. 1787 5
1 § 582-104. Procedure for a de facto parent to file for a judgment of
2 parentage. (a) A proceeding to establish parentage of a child pursuant
3 to this article may be commenced by a person who:
4 (1) Is alive when the proceeding is commenced; and
5 (2) Claims to be a de facto parent of the child; or
6 (3) Claims to be the child of a de facto parent.
7 (b) A person seeking to be adjudicated as a parent of a child shall
8 file a petition with the court before the child reaches eighteen years
9 of age. The child is required to be alive at the time of the filing.
10 The petition shall include a verified affidavit alleging facts to
11 support the existence of a de facto parent relationship with the child.
12 The petition and affidavit shall be served on the following: all parents
13 of the child; the child; the child's legal guardian if the child is
14 under eighteen years of age; and, any other necessary party to the
15 proceeding.
16 (c) An adverse party, parent or legal guardian may file a pleading and
17 verified affidavit in response to the petition that shall be served on
18 all parties to the proceeding.
19 (d) The court shall determine on the basis of the pleadings and affi-
20 davits whether the person seeking to be adjudicated a parent has
21 presented prima facie evidence of the criteria for parentage pursuant to
22 subdivision (a) of section 582-103 of this part and, therefore, has
23 standing to proceed with a parentage action. The court, in its sole
24 discretion, may hold a hearing to determine disputed facts that are
25 necessary and material to the issue of standing.
26 (e) If the child for whom the person is seeking to be adjudicated a
27 parent has two parents at the time the petition is filed and there is
28 litigation pending between the parents at the time the petition is filed
29 regarding custody or visitation with respect to the child, a parent may
30 introduce evidence that the de facto parent action is being brought to
31 interfere improperly in the pending litigation. Based on such evidence,
32 the court may determine that allowing the de facto parent's petition for
33 judgment of parentage to proceed would not be in the best interests of
34 the child and may dismiss the petition without prejudice.
35 (f) The court may enter an interim order concerning contact between
36 the child and a person with standing seeking adjudication under section
37 582-103 of this part as a parent of the child.
38 (g) Any person adjudicated to be a de facto parent of a child under
39 this section shall have all the legal rights and responsibilities of
40 parentage under New York law, including the obligation to support the
41 child.
42 PART 3
43 COURT ADJUDICATION OF PARENTAGE FOR A CHILD WITH MULTIPLE PARENTS
44 Section 582-105. Adjudicating competing claims of parentage.
45 582-106. Judgment of parentage for a child with multiple
46 parents.
47 § 582-105. Adjudicating competing claims of parentage. (a) In a proceed-
48 ing to adjudicate competing claims of parentage of a child by two or
49 more individuals, the court shall adjudicate parentage in the best
50 interest of the child, based on:
51 (1) the age of the child;
52 (2) the length of time during which each individual assumed the role
53 of parent of the child;
54 (3) the nature of the relationship between the child and each individ-
55 ual;
S. 1787 6
1 (4) the harm to the child if the relationship between the child and
2 each individual is not recognized;
3 (5) the basis for each individual's claim to parentage of the child;
4 and
5 (6) other equitable factors arising from the disruption of the
6 relationship between the child and each individual or the likelihood of
7 other harm to the child.
8 (b) The interest that a child may have in forming a relationship with
9 a genetic parent shall not be given conclusive weight in adjudicating
10 competing claims of parentage, particularly when there is no preexisting
11 substantial relationship between the genetic parent and the child.
12 (c) In a proceeding to adjudicate parentage of a person who claims to
13 be a de facto parent of the child, if there is more than one other
14 person who is a parent or has a claim to parentage of the child and the
15 court determines that the requirements of this section and section 582-
16 103 of this article are satisfied, the court shall award parentage to
17 the person claiming to be a de facto parent, provided the adjudication
18 of a person as a parent under this section shall not disestablish the
19 parentage of any other parent, nor limit any other parent's rights under
20 the laws of this state.
21 § 582-106. Judgment of parentage for a child with multiple parents.
22 The court may adjudicate a child to have more than two parents if the
23 court finds that failure to recognize more than two parents would be
24 detrimental to the child. A finding of detriment to the child shall not
25 require a finding of unfitness of any parent or person seeking an adju-
26 dication of parentage. In determining detriment to the child, the court
27 shall consider all relevant factors, including:
28 (a) The harm if the child is removed from a stable placement with a
29 person who has fulfilled the child's physical needs and psychological
30 needs for care and affection and has assumed the role since the child's
31 birth or for a substantial period;
32 (b) The harm if the child is separated from a person the child under-
33 stands to be their parent; and
34 (c) The intention of all parents to raise a child together, including
35 a pre-conception agreement to parent or agreement to parent at any other
36 point in the child's life.
37 § 4. Subdivision (a) of section 70 of the domestic relations law, as
38 amended by chapter 457 of the laws of 1988, is amended to read as
39 follows:
40 (a) Where a minor child is residing within this state, [either] any
41 parent may apply to the supreme court for a writ of habeas corpus to
42 have such minor child brought before such court; and on the return ther-
43 eof, the court, on due consideration, may award the natural guardian-
44 ship, charge and custody of such child to [either] any parent for such
45 time, under such regulations and restrictions, and with such provisions
46 and directions, as the case may require, and may at any time thereafter
47 vacate or modify such order. In all cases there shall be no prima facie
48 right to the custody of the child in [either] any parent, but the court
49 shall determine solely what is for the best interest of the child, and
50 what will best promote its welfare and happiness, and make award accord-
51 ingly. Where a court deems it to be in the child's best interest, the
52 court may award custody to more than two parents.
53 § 5. Subparagraphs 2 and 4 of paragraph (a), clause (vi) of subpara-
54 graph 5 of paragraph (c), subparagraphs 6 and 7 of paragraph (f) and
55 paragraphs (g), (i) and (j) of subdivision 1 and paragraph a and the
56 opening paragraph and subparagraph 1 of paragraph b of subdivision 3 of
S. 1787 7
1 section 413 of the family court act, subparagraphs 2 and 4 of paragraph
2 (a) and subparagraphs 6 and 7 of paragraph (f) of subdivision 1 as
3 amended by chapter 567 of the laws of 1989, clause (vi) of subparagraph
4 5 of paragraph (c) of subdivision 1 as added by chapter 215 of the laws
5 of 2009, paragraphs (g) and (i) of subdivision 1 as amended by chapter
6 436 of the laws of 2011, paragraph (j) of subdivision 1 as amended by
7 chapter 59 of the laws of 1993, and paragraph a and the opening para-
8 graph and subparagraph 1 of paragraph b of subdivision 3 as amended by
9 chapter 398 of the laws of 1997, are amended to read as follows:
10 (2) "Child support" shall mean a sum to be paid pursuant to court
11 order or decree by [either or both parents] one or more parent or pursu-
12 ant to a valid agreement between the parties for care, maintenance and
13 education of any unemancipated child under the age of twenty-one years.
14 (4) "Combined parental income" shall mean the sum of the income of
15 [both] all parents.
16 (vi) Upon proof by [either] any party that cash medical support pursu-
17 ant to clause (ii), (iii), (iv) or (v) of this subparagraph would be
18 unjust or inappropriate pursuant to paragraph (f) of this subdivision
19 [one of this section], the court shall:
20 (6) The educational needs of [either] any parent;
21 (7) A determination that the gross income of one or more parent is
22 substantially less than [the other] one or more of another parent's
23 gross income;
24 (g) Where the court finds that the non-custodial parent's pro rata
25 share of the basic child support obligation is unjust or inappropriate,
26 the court shall order the non-custodial parent to pay such amount of
27 child support as the court finds just and appropriate, and the court
28 shall set forth, in a written order, the factors it considered; the
29 amount of each party's pro rata share of the basic child support obli-
30 gation; and the reasons that the court did not order the basic child
31 support obligation. Such written order may not be waived by [either] any
32 party or counsel; provided, however, and notwithstanding any other
33 provision of law, including but not limited to section four hundred
34 fifteen of this part, the court shall not find that the non-custodial
35 parent's pro rata share of such obligation is unjust or inappropriate on
36 the basis that such share exceeds the portion of a public assistance
37 grant which is attributable to a child or children. Where the non-custo-
38 dial parent's income is less than or equal to the poverty income guide-
39 lines amount for a single person as reported by the federal department
40 of health and human services, unpaid child support arrears in excess of
41 five hundred dollars shall not accrue.
42 (i) Where [either or both] any of the parties are unrepresented, the
43 court shall not enter an order or judgment other than a temporary order
44 pursuant to section two hundred thirty-seven of the domestic relations
45 law, that includes a provision for child support unless the unrepre-
46 sented party or parties have received a copy of the child support stand-
47 ards chart promulgated by the commissioner of the office of temporary
48 and disability assistance pursuant to subdivision two of section one
49 hundred eleven-i of the social services law. Where [either] any party is
50 in receipt of child support enforcement services through the local
51 social services district, the local social services district child
52 support enforcement unit shall advise such party of the amount derived
53 from application of the child support percentage and that such amount
54 serves as a starting point for the determination of the child support
55 award, and shall provide such party with a copy of the child support
56 standards chart.
S. 1787 8
1 (j) In addition to financial disclosure required in section four
2 hundred twenty-four-a of this article, the court may require that the
3 income and/or expenses of [either] any party be verified with documenta-
4 tion including, but not limited to, past and present income tax returns,
5 employer statements, pay stubs, corporate, business, or partnership
6 books and records, corporate and business tax returns, and receipts for
7 expenses or such other means of verification as the court determines
8 appropriate. Nothing herein shall affect any party's right to pursue
9 discovery pursuant to this chapter, the civil practice law and rules, or
10 the family court act.
11 a. One-time adjustment of child support orders issued prior to Septem-
12 ber fifteenth, nineteen hundred eighty-nine. Any party to a child
13 support order issued prior to September fifteenth, nineteen hundred
14 eighty-nine on the behalf of a child in receipt of public assistance or
15 child support services pursuant to section one hundred eleven-g of the
16 social services law may request that the support collection unit under-
17 take one review of the order for adjustment purposes pursuant to section
18 one hundred eleven-h of the social services law. A hearing on the
19 adjustment of such order shall be granted upon the objection of [either]
20 any party pursuant to the provisions of this section. An order shall be
21 adjusted if as of the date of the support collection unit's review of
22 the correct amount of child support as calculated pursuant to the
23 provisions of this section would deviate by at least ten percent from
24 the child support ordered in the last permanent support order of the
25 court. Additionally, a new support order shall be issued upon a showing
26 that the current order of support does not provide for the health care
27 needs of the child through insurance or otherwise. Eligibility of the
28 child for medical assistance shall not relieve any obligation the
29 parties otherwise have to provide for the health care needs of the
30 child. The support collection unit's review of a child support order
31 shall be made on notice to all parties to the current support order and
32 shall be subject to the provisions of section four hundred twenty-four-a
33 of this article. Nothing herein shall be deemed in any way to limit,
34 restrict, expand or impair the rights of any party to file for a modifi-
35 cation of a child support order as is otherwise provided by law.
36 Upon receipt of an adjustment finding and where appropriate a proposed
37 order in conformity with such finding filed by [either] any party or by
38 the support collection unit, a party shall have thirty-five days from
39 the date of mailing of the adjustment finding and proposed adjusted
40 order, if any, to submit to the court identified thereon specific writ-
41 ten objections to such finding and proposed order.
42 (1) If specific written objections are submitted by [either] any party
43 or by the support collection unit, a hearing shall be scheduled by the
44 court on notice to the parties and the support collection unit, who
45 shall have the right to be heard by the court and to offer evidence in
46 support of or in opposition to adjustment of the support order.
47 § 6. This act shall take effect on the ninetieth day after it shall
48 have become a law. Effective immediately, the addition, amendment and/or
49 repeal of any rule or regulation necessary for the implementation of
50 this act on its effective date are authorized to be made and completed
51 on or before such effective date.
