Family Court, Franklin County, September 2, 2021

Kevin F. Nichols, Malone, for petitioner.

Gregory LaDuke, [*2]Lake Placid, for K.M., respondent.

Michael J. Phillips, Plattsburgh, for K.B., respondent.

Stephen D. Button, Canton, for St. Lawrence County Department of Social Services, respondent.

Tammy L.V. Gordon, Malone, Attorney for the Child.

The court is asked, in this visitation modification proceeding, to determine the future relationship between a young boy and the woman who was his foster mother for a number of years and who had ongoing, judicially sanctioned, visitation with him following his return to his father and until recently. The child's father seeks here to terminate the visitation previously judicially awarded, upon that father's consent, thereby severing contact between the boy and the woman he regards as one of his three mothers. The law compels the court to grant the father's modification petition. Nonetheless, the court finds that such a result is contrary to the child's best interests, a determination this court is precluded from reaching judicially.

On August 21, 2015, St. Lawrence County Family Court entered an order, upon consent, which awarded the petitioning father the sole legal and physical custody of the child C.M. (born on XX/XX/2012). The mother, K.M., a respondent, was awarded supervised visitation. The former foster mother, K.B., also a respondent, was awarded visitation.

In the prior order, upon consent, St. Lawrence County Family Court accepted the parties' stipulation that extraordinary circumstances existed to support visitation by the former foster mother, respondent K.B. No specific extraordinary circumstances were identified. By its specific language, the order provided that the stipulated determination of extraordinary circumstances, as to visitation, would not be applied to any subsequent custody petition.

On June 24, 2020, petitioner father filed a petition in this court to terminate respondent K.B.'s visitation. On July 10, 2020, respondent K.B. filed a petition in this court seeking sole legal and physical custody of the child (K.B. v K.M. & J.W., docket No. V-00342-20/20A).

Fact-finding commenced on March 19, 2021, and continued on April 16, 2021, May 11, 2021, and July 27, 2021. A Lincoln hearing was held on July 30, 2021. During the course of the{**73 Misc 3d at 387} fact-finding, respondent K.B. withdrew her petition for sole legal and physical custody of the child, leaving only the father's petition to terminate the former foster mother's visitation rights for this court to determine.

The biological mother did not take an active role in the fact-finding and does not take a position regarding the father's petition. The St. Lawrence County Department of Social Services did not actively participate in the fact-finding either and sought leave not to participate midway through the fact-finding. Such leave was granted.

It is clear from the fact-finding evidence that the father and the former foster mother have had an acrimonious relationship over the past several years. Both have filed child abuse reports against the other, most of which have been unfounded. None of them led the St. Lawrence County Department of Social Services to take any further action beyond indication. At fact-finding, both the father and the former foster mother failed to prove any of their specific allegations, including the facts surrounding the single indicated report against the father's live-in companion. The caseworker indicated a report for cuts and bruises on the child allegedly inflicted by the father's companion, even though that caseworker admitted that she had not seen any cuts or bruises on the child.

The testimony established two general facts which are critical to this court's determination. First, the relationship between the father and the former foster mother is, unfortunately, irretrievably broken. Secondly, the child, who loves all three "mothers" in his life, is in the middle of a maelstrom of maternal identification. He appropriately refers to his biological mother as his mother, but he also refers to both the former foster mother and the father's current companion by that same term. This is undoubtedly due to the fact that each, in some way or another, has acted as a mother to him. It will not unduly strain the confidentiality of the Lincoln hearing to indicate here that C.M. loves all three, values the role each plays in his life, does not fear any of them or see any of them as any type of a threat, wants to spend time with all of them, and will be devastated and adversely affected by this result.

The court directed the parties to submit written closing arguments to assist it in rendering a decision following the close of{**73 Misc 3d at 388}all proof. The mother and the St. Lawrence County Department of Social Services did not submit a written closing.^[FN1]

The former foster mother's written closing argues that the father has failed to prove a change in circumstances and that his petition, therefore, should be dismissed.

The father argues that the best interests of the child are better served by removing the former foster mother from the child's life. Although he does not use the words "change in circumstances" in his closing, it is clear from his factual assertions that the alleged changes in circumstances are the deteriorated relationship between himself and the former foster mother, the unfounded hotline report, the poorly supported report that was indicated, the poor behavior of the child, and his improving behavior since his visitation with his former foster mother was temporarily terminated at the commencement of this proceeding.

The Attorney for the Child agrees that the animosity between the adult parties constitutes a change in circumstances. However, the Attorney for the Child argues that the best interests of the child will be served by continued visitation with the former foster mother due to the affection that the child feels for her after his long association with her and with her family. In order to support continued visitation by a nonparent, the Attorney for the Child argues that extraordinary circumstances have been established. The extraordinary circumstances argued are the fact that the former foster mother had court ordered visitation from 2015 until this court temporarily suspended that visitation in 2020, upon the filing of the father's petition.

Testimony during fact-finding, and evidence presented at the Lincoln hearing, have convinced the court that the best interests of the child would be best served by allowing respondent K.B. to have continued visitation with the child.

However, the court lacks the authority to mandate the father to provide such visitation. The father has met his threshold requirement of proving that there has been a change in circumstances because of the extreme animosity between him and the former foster mother largely stemming from their exchange of abuse or neglect allegations.

The custodial father no longer wants his child to visit with the former foster mother. Although the court may disagree{**73 Misc 3d at 389} with the father's choice, Family Court is loathe to micromanage a custodial parent's decisions about whom their child should associate with. Here, the former foster mother voluntarily withdrew her petition for custody. She is no longer challenging the father's right to sole legal and physical custody. She is simply opposing his petition to [*4]terminate her right to visitation with his child.

"In this case, no one questions the [father's] fitness to raise [his] child and no one seeks to change custody. Thus, the Bennett rule^[FN2] has no application to the situation before us, and our inquiry is directed solely to the State's power to interfere with the right of this [father] to choose those with whom [his] child associates. The State may not interfere with that fundamental right unless it shows some compelling State purpose which furthers the child's best interests (see, Stanley v Illinois, 405 US 645, 651). No such compelling purposes are present in this case" (Matter of Ronald FF. v Cindy GG., 70 NY2d 141, 144-145 [1987]).

The law clearly distinguishes between the rights of a nonparent who seeks custody as opposed to a nonparent who seeks only visitation. A former foster parent lacks standing to petition for visitation (see Matter of Cindy P. v Danny P., 206 AD2d 615 [3d Dept 1994]; Matter of Hayley PP. [Christal PP.—Cindy QQ.], 77 AD3d 1133 [3d Dept 2010]). However, a former foster parent may gain standing to petition for custody if she satisfies the heavy burden of proving that extraordinary circumstances support the custody petition (see Matter of Brown v Comer, 136 AD3d 1173 [3d Dept 2016]).

In explaining this distinction, the Court of Appeals stated:

"To be sure, visitation is a subspecies of custody, but the differences in degree in these relational categories is so great and so fundamental that rules like the Bennett rule, which have been carefully crafted and made available only to custody disputes, should not be casually extended to the visitation field. Thus, we expressly decline to do so" (Matter of Ronald FF. v Cindy GG., 70 NY2d 141, 144 [1987]).

The existence of a prior order, upon consent, which granted respondent K.B. visitation rights, does not change this analysis.{**73 Misc 3d at 390}

"Contrary to respondent's analysis, we conclude that the issue is governed by the decisions of the Court of Appeals in Matter of Ronald FF. v Cindy GG. (70 NY2d 141) and Matter of Alison D. v Virginia M. (77 NY2d 651). In Matter of Ronald FF. v Cindy GG. (supra, at 142), the Court held that '[v]isitation rights may not be granted . . . to a biological stranger where the child, born out of wedlock, is properly in the custody of his mother'. Although, as pointed out by respondent, that case may be distinguished by the absence of a voluntary agreement, in Matter of Canabush v Wancewicz (193 AD2d 260), this Court extended the analysis of Matter of Ronald FF. v Cindy GG. (supra) to a case where a nonparent's custody rights arose out of an agreement, applying the rationale that a parent may not stipulate away a child's right to be reared by its biological parent (Matter of Canabush v Wancewicz, supra, at 262). Because that rationale strikes us as no less applicable in the case of visitation, we conclude that a voluntary agreement, alone or as incorporated into a court order, will not of itself confer standing upon a person not related by blood to assert a legal claim to visitation" (Matter of Cindy P. v Danny P., 206 AD2d 615, 616 [3d Dept 1994]).

In another, similar case, Judge Duggan wrote that

"[t]he court retained jurisdiction of the case to facilitate the transition of the child from his foster home to that of the father. As a result, the court entered a series of visitation [*5]orders which gradually decreased the time the child spent with the foster mother and increased the time spent with the father. At this point in time, the father has full custody and the foster mother has weekly Sunday visits. The foster mother now seeks to maintain that time and the father wishes to terminate court-ordered contact between the foster mother and the child. . . .

"Based on Bennett v Jeffreys (supra) and its progeny, it is clear that the foster mother has no statutory or common-law right to visitation with a former foster child and her petition must be denied on these grounds" (Webster v Ryan, 187 Misc 2d 127, 129, 137 [Fam Ct, Albany County 2001]).{**73 Misc 3d at 391}

The rule against nonparents seeking visitation has been relaxed due to evolving concepts about who may be defined as a parent. However, those cases deal with situations where the parties agreed to raise a child together. In such cases, a non-biological, non-adoptive partner may have standing to seek visitation.^[FN3] This exception to the rule has been described as "narrow."

"Our holding that Domestic Relations Law § 70 permits a non-biological, non-adoptive parent to achieve standing to petition for custody and visitation requires us to specify the limited circumstances in which such a person has standing as a 'parent' under Domestic Relations Law § 70 (see Alison D., 77 NY2d at 661 [Kaye, J., dissenting]; Troxel [v Granville], 530 US [57,] 67 [2000]). Because of the fundamental rights to which biological and adoptive parents are undeniably entitled, any encroachment on the rights of such parents and, especially, any test to expand who is a parent, must be, as Judge Kaye acknowledged in her dissent in Alison D., appropriately narrow" (Matter of Brooke S.B. v Elizabeth A.C.C., 28 NY3d 1, 27 [2016]).

There is no precedent for expanding the definition of "parent" to include a former foster parent who, for five years, had been awarded visitation as, essentially, a friend of the child. Respondent K.B. is not a parent by estoppel as contemplated by Brooke S.B.

For a nonparent to overcome the fundamental right of a custodial parent to determine whom his child may associate with, a right of constitutional dimension, the nonparent must establish a "compelling State purpose" (Matter of Ronald FF. v Cindy GG., 70 NY2d 141, 144-145 [1987]). No compelling state purpose was established at the fact-finding.

Paraphrasing the court in Matter of Melissa M. (101 Misc 2d 407, 413 [Fam Ct, NY County 1979]), State intervention would be unjustified because the father has shown himself to be adequate to address the child's needs. While respondent K.B.'s heartbreak at her complete severance from C.M. is poignant and unfair in view of her early care of C.M. and the subsequent visitation, the father has the right to make that decision. The{**73 Misc 3d at 392} court concludes that the father's decision to sever the relationship between respondent K.B. and C.M. is not in C.M.'s best interest. However, the court lacks the authority to prevent that from happening. The court can only hope that the father will reconsider his decision lest, in the long run, he snatch defeat from the jaws of victory.

Now, therefore, for the reasons set forth herein, it is ordered that the petition of J.W. for modification of a prior order of the Family Court [*6]be, and the same hereby is, granted; and it is further ordered that J.W. be, and he hereby is, relieved of the obligation to provide visitation between the child, C.M., and respondent, K.B.; and it is further ordered that the Attorney for the Child shall remain in that status, for a period of 12 months, and may take such legal action as she may deem fit on behalf of the child without need of further formal appointment.