Matter of A. (Anonymous), Destinee; Matter of A. (Anonymous), Kaylee; Matter of A. (Anonymous), Kholee
Attorneys and Parties
Brief Summary
Family law—kinship guardianship and parental access (visitation) under New York Family Court Act § 1055-b [kinship guardianship; requires clear and convincing proof of extraordinary circumstances and that appointment is in the child’s best interests] and § 661(c) [Family Court may appoint a guardian when in the child’s best interests], and the non-delegation rule for visitation determinations.
After a hearing, Family Court appointed the maternal grandfather and his wife as kinship guardians of all three children; denied the father court-ordered access with all children but allowed informal access with Destinee and Kaylee conditioned on those children’s consent; denied the mother court-ordered access with Destinee and Kaylee but allowed informal access conditioned on their consent; and set a limited virtual/supervised schedule for the mother with Kholee.
Only the provisions conditioning the parents’ informal parental access with Destinee and Kaylee on those children’s consent were modified and deleted.
A court may not delegate its authority to determine parental access to a parent or child (Matter of Mondschein v Mondschein [a court cannot delegate visitation determinations to a parent or child]; see also Matter of Clezidor v Lexune). The remaining determinations were supported by extraordinary circumstances and best interests findings under Family Ct Act § 1055-b(a)(iv)(A) [kinship guardianship; extraordinary circumstances] and §§ 661(c), 1055-b(a)(ii) [best interests].
Background
The children were removed from the parents’ custody in 2015 and placed in foster care. Both parents were incarcerated from approximately 2018 to 2020. The record reflected parental substance abuse, noncompliance with agency drug testing, and refusal to sign HIPAA waivers to verify treatment compliance. The maternal grandfather and his wife assumed full responsibility for the children at least three years before the hearing, and the youngest child, Kholee, had lived with them for most of her life. The petitioners sought kinship guardianship pursuant to Family Court Act article 6.
Lower Court Decision
Family Court (Kings County) granted the petitions for kinship guardianship over the father’s objection, found extraordinary circumstances, and determined guardianship served the children’s best interests. The court denied the father court-ordered access with all children but allowed informal access with Destinee and Kaylee if they consented; denied the mother court-ordered access with Destinee and Kaylee but allowed informal access with their consent; and awarded the mother biweekly virtual and monthly supervised access with Kholee.
Appellate Division Reversal
The Appellate Division modified the orders by deleting the conditions that made the parents’ informal access with Destinee and Kaylee dependent on the children’s consent, holding such delegation improper. It remitted for a new best-interests determination of parental access for those two children. The court otherwise affirmed: appointment of the petitioners as kinship guardians, denial of the father’s access with Kholee, and the mother’s access schedule with Kholee.
Legal Significance
Reaffirms two core principles in New York family law: (1) courts may appoint kinship guardians over a parent’s objection upon clear and convincing proof of extraordinary circumstances and a best-interests finding under Family Ct Act § 1055-b(a)(iv)(A) [kinship guardianship; extraordinary circumstances] and §§ 661(c), 1055-b(a)(ii) [best interests]; and (2) visitation determinations cannot be delegated to the preferences or veto power of a parent or child (non-delegation rule).
Kinship guardianship was properly awarded based on extraordinary circumstances and best interests, but any visitation conditioned on a child’s consent is an improper delegation; courts must make independent best-interests access determinations.