Troubling Visitation Measure Awaits Governor’s Action

Last week, New Yorkers for Constitutional Freedoms wrote to Gov. Andrew Cuomo to express concern about a bill that may soon reach his desk.

Bill S.4203-A-Savino/A.2199-A-Joyner was passed by each house of the Legislature in June of this year. This bill would give courts the authority to grant biological parents continued contact with their children after their parental rights have been terminated. Specifically, when a parent is the subject of a court proceeding to terminate his or her parental rights, this bill would allow that parent to apply for a “post-termination visitation and/or contact” order. The bill would allow for such an order if “such visitation and/or contact with the child is found by the court to be in the best interest of the child.” Apparently, the bill was drafted for the purpose of overruling the New York Court of Appeals decision in Matter of Hailey ZZ. (Ricky ZZ.), 19 NY3d 422 (2012). In that case, the Court  ruled that existing law does not give family court judges the authority to order post-termination contact between a biological parent and a child in a termination of parental rights proceeding.

New Yorkers for Constitutional Freedoms acknowledges the bill sponsors’ desire to minimize disruption in the lives of children whose biological parents are not in a position to raise them. However, in an effort to promote the best interests of children, the proposed bill would diminish the rights of adoptive parents. In so doing, the bill could actually hinder—not promote—a child’s best interests. As the Court of Appeals stated in Matter of Hailey ZZ., there are “practical problems with leaving the decision on posttermination contact up to a judge.” 19 NY3d 422, 438 n.9. The Court identified those “practical problems” as follows:

Specifically, the uncertainty and the potential for delay and added expense inhering in this approach discourage, and may derail, the adoption of neglected children, thus reducing their opportunities to be placed in a permanent home, or, if they are adopted, threatening the integrity of the new family unit… [Many] prospective adoptive parents are reluctant or unwilling to entertain the prospect of facilitating contact between a child and a biological parent sufficiently troubled to have lost parental rights. On the flip side of the coin, adoptive parents who do not object to posttermination contact are going to permit this to happen without the necessity of a court order. Surely, adoptive parents are the best arbiters of whether continued contact with the birth parent is in a child’s best interests.

At New Yorkers for Constitutional Freedoms, we are in full agreement with the analysis set forth above by the Court of Appeals. Accordingly, we ask that Gov. Cuomo veto this legislation when it reaches his desk. Furthermore, we invite New Yorkers—and especially adoptive families—to contact the Governor and speak out against this bill.

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