§ 1089-A — Custody or guardianship with a parent or parents, a relative or relatives or a suitable person or persons pursuant to article six of this...

New York § 1089-A

• Jurisdiction: New York
• Law FCT: Family Court Act
• Art. 10-A: Permanency Hearings For Children Placed Out of Their Homes

Text

§ 1089-a. Custody or guardianship with a parent or parents, a relative\nor relatives or a suitable person or persons pursuant to article six of\nthis act or guardianship of a relative or relatives or a suitable person\nor persons pursuant to article seventeen of the surrogate's court\nprocedure act. (a) Where the permanency plan is placement with a fit and\nwilling relative or a respondent parent, the court may issue an order of\ncustody or guardianship in response to a petition filed by a respondent\nparent, relative or suitable person seeking custody or guardianship of\nthe child under article six of this act or an order of guardianship of\nthe child under article seventeen of the surrogate's court procedure\nact. A petition for custody or guardianship may be heard jointly with a\npermanency hearing held pursuant to this article. An order of custody or\nguardianship issued in accordance with this subdivision will result in\ntermination of all pending orders issued pursuant to this article or\narticle ten of this act if the following conditions have been met:\n (i) the court finds that granting custody to the respondent parent or\nparents, relative or relatives or suitable person or persons or\nguardianship of the child to the relative or relatives or suitable\nperson or persons is in the best interests of the child and that the\ntermination of the order placing the child pursuant to article ten of\nthis act will not jeopardize the safety of the child. In determining\nwhether the best interests of the child will be promoted by the granting\nof guardianship of the child to a relative who has cared for the child\nas a foster parent, the court shall give due consideration to the\npermanency goal of the child, the relationship between the child and the\nrelative, and whether the relative and the local department of social\nservices have entered into an agreement to provide kinship guardianship\nassistance payments for the child to the relative under title ten of\narticle six of the social services law, and, if so, whether a\nfact-finding hearing pursuant to section one thousand fifty-one of this\nchapter has occurred, and whether compelling reasons exist for\ndetermining that the return home of the child and the adoption of the\nchild are not in the best interests of the child and are, therefore, not\nappropriate permanency options; and\n (ii) the court finds that granting custody to the respondent parent or\nparents, relative or relatives or suitable person or persons or\nguardianship of the child to the relative or relatives or suitable\nperson or persons will provide the child with a safe and permanent home;\nand\n (iii) the parents, the attorney for the child, the local department of\nsocial services, and the foster parent of the child who has been the\nfoster parent for the child for one year or more consent to the issuance\nof an order of custody or guardianship under article six of this act or\nthe granting of guardianship under article seventeen of the surrogate's\ncourt procedure act and the termination of the order of placement\npursuant to this article or article ten of this act; or, if any of the\nparties object to the granting of custody or guardianship, the court has\nmade the following findings after a joint hearing on the permanency of\nthe child and the petition under article six of this act or article\nseventeen of the surrogate's court procedure act:\n (A) if a relative or relatives or suitable person or persons have\nfiled a petition for custody or guardianship and a parent or parents\nfail to consent to the granting of the petition, the court finds that\nthe relative or relatives or suitable person or persons have\ndemonstrated that extraordinary circumstances exist that support\ngranting an order of custody or guardianship under article six of this\nact or the granting of guardianship under article seventeen of the\nsurrogate's court procedure act to the relative or relatives or suitable\nperson or persons and that the granting of the order will serve the\nchild's best interests; or\n (B) if a relative or relatives or suitable person or persons have\nfiled a petition for custody or guardianship and the local department of\nsocial services, the attorney for the child, or the foster parent of the\nchild who has been the foster parent for the child for one year or more\nobjects to the granting of the petition, the court finds that granting\ncustody or guardianship of the child to the relative or relatives or\nsuitable person or persons is in the best interests of the child; or\n (C) if a respondent parent has filed a petition for custody under\narticle six of this act and a party who is not a parent of the child\nobjects to the granting of the petition, the court finds either that the\nobjecting party has failed to establish extraordinary circumstances, or,\nif the objecting party has established extraordinary circumstances, that\ngranting custody to the petitioning respondent parent would nonetheless\nbe in the child's best interests; or\n (D) if a respondent parent has filed a petition for custody under\narticle six of this act and the other parent fails to consent to the\ngranting of the petition, the court finds that granting custody to the\npetitioning respondent parent is in the child's best interests.\n (a-1) Custody and visitation petition of non-respondent parent under\narticle six of this act. Where a proceeding filed by a non-respondent\nparent pursuant to article six of this act is pending at the same time\nas a proceeding brought in the family court pursuant to this article,\nthe court presiding over the proceeding under this article may jointly\nhear the permanency hearing and the hearing on the custody and\nvisitation petition under article six of this act; provided however, the\ncourt must determine the non-respondent parent's custody petition filed\nunder article six of this act in accordance with the terms of that\narticle.\n (a-2) Custody and visitation petition of non-respondent parent under\nsection two hundred forty of the domestic relations law. Where a\nproceeding brought in the supreme court involving the custody of, or\nright to visitation with, any child of a marriage is pending at the same\ntime as a proceeding brought in the family court pursuant to this\narticle, the court presiding over the proceeding under this article may\njointly hear the permanency hearing and, upon referral from the supreme\ncourt, the hearing to resolve the matter of custody or visitation in the\nproceeding pending in the supreme court; provided however, the court\nmust determine the non-respondent parent's custodial rights in\naccordance with the terms of paragraph (a) of subdivision one of section\ntwo hundred forty of the domestic relations law.\n (b) An order made in accordance with the provisions of this section\nshall set forth the required findings as described in subdivision (a) of\nthis section, where applicable, including, if the guardian and local\ndepartment of social services have entered into an agreement to provide\nkinship guardianship assistance payments for the child to the relative\nunder title ten of article six of the social services law, that a\nfact-finding hearing pursuant to section one thousand fifty-one of this\nchapter and a permanency hearing pursuant to section one thousand\neighty-nine of this part have occurred, and the compelling reasons that\nexist for determining that the return home of the child are not in the\nbest interests of the child and are, therefore, not appropriate\npermanency options for the child, and shall result in the termination of\nany orders in effect pursuant to article ten of this act or pursuant to\nthis article. Notwithstanding any other provision of law, the court\nshall not issue an order of supervision nor may the court require the\nlocal department of social services to provide services to the\nrespondent or respondents when granting custody or guardianship pursuant\nto article six of this act under this section or the granting of\nguardianship under article seventeen of the surrogate's court procedure\nact in accordance with this section.\n (c) As part of the order granting custody or guardianship in\naccordance with this section pursuant to article six of this act or the\ngranting of guardianship under article seventeen of the surrogate's\ncourt procedure act, the court may require that the local department of\nsocial services and the attorney for the child receive notice of, and be\nmade parties to, any subsequent proceeding to modify the order of\ncustody or guardianship granted pursuant to the article six proceeding;\nprovided, however, if the guardian and the local department of social\nservices have entered into an agreement to provide kinship guardianship\nassistance payments for the child to the relative under title ten of\narticle six of the social services law, the order must require that the\nlocal department of social services and the attorney for the child\nreceive notice of, and be made parties to, any such subsequent\nproceeding involving custody or guardianship of the child.\n (d) Any order entered pursuant to this section shall conclude the\ncourt's jurisdiction over the article ten proceeding and the court shall\nnot maintain jurisdiction over the proceeding for further permanency\nhearings.\n (e) The court shall hold age appropriate consultation with the child,\nhowever, if the youth has attained fourteen years of age, the court\nshall ascertain his or her preference for a suitable guardian or\ncustodian. Notwithstanding any other section of law, where the youth is\nover the age of eighteen, he or she shall consent to the appointment of\na suitable guardian or custodian.\n