N.Y. Family Court Act § 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...

§ 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 act or guardianship of a relative or relatives or a suitable person

or persons pursuant to article seventeen of the surrogate's court

procedure act. (a) Where the permanency plan is placement with a fit and

willing relative or a respondent parent, the court may issue an order of

custody or guardianship in response to a petition filed by a respondent

parent, relative or suitable person seeking custody or guardianship of

the child under article six of this act or an order of guardianship of

the child under article seventeen of the surrogate's court procedure

act. A petition for custody or guardianship may be heard jointly with a

permanency hearing held pursuant to this article. An order of custody or

guardianship issued in accordance with this subdivision will result in

termination of all pending orders issued pursuant to this article or

article ten of this act if the following conditions have been met:

(i) the court finds that granting custody to the respondent parent or

parents, relative or relatives or suitable person or persons or

guardianship of the child to the relative or relatives or suitable

person or persons is in the best interests of the child and that the

termination of the order placing the child pursuant to article ten of

this act will not jeopardize the safety of the child. In determining

whether the best interests of the child will be promoted by the granting

of guardianship of the child to a relative who has cared for the child

as a foster parent, the court shall give due consideration to the

permanency goal of the child, the relationship between the child and the

relative, and whether the relative and the local department of social

services have entered into an agreement to provide kinship guardianship

assistance payments for the child to the relative under title ten of

article six of the social services law, and, if so, whether a

fact-finding hearing pursuant to section one thousand fifty-one of this

chapter has occurred, and whether compelling reasons exist for

determining that the return home of the child and the adoption of the

child are not in the best interests of the child and are, therefore, not

appropriate permanency options; and

(ii) the court finds that granting custody to the respondent parent or

parents, relative or relatives or suitable person or persons or

guardianship of the child to the relative or relatives or suitable

person or persons will provide the child with a safe and permanent home;

and

(iii) the parents, the attorney for the child, the local department of

social services, and the foster parent of the child who has been the

foster parent for the child for one year or more consent to the issuance

of an order of custody or guardianship under article six of this act or

the granting of guardianship under article seventeen of the surrogate's

court procedure act and the termination of the order of placement

pursuant to this article or article ten of this act; or, if any of the

parties object to the granting of custody or guardianship, the court has

made the following findings after a joint hearing on the permanency of

the child and the petition under article six of this act or article

seventeen of the surrogate's court procedure act:

(A) if a relative or relatives or suitable person or persons have

filed a petition for custody or guardianship and a parent or parents

fail to consent to the granting of the petition, the court finds that

the relative or relatives or suitable person or persons have

demonstrated that extraordinary circumstances exist that support

granting an order of custody or guardianship under article six of this

act or the granting of guardianship under article seventeen of the

surrogate's court procedure act to the relative or relatives or suitable

person or persons and that the granting of the order will serve the

child's best interests; or

(B) if a relative or relatives or suitable person or persons have

filed a petition for custody or guardianship and the local department of

social services, the attorney for the child, or the foster parent of the

child who has been the foster parent for the child for one year or more

objects to the granting of the petition, the court finds that granting

custody or guardianship of the child to the relative or relatives or

suitable person or persons is in the best interests of the child; or

(C) if a respondent parent has filed a petition for custody under

article six of this act and a party who is not a parent of the child

objects to the granting of the petition, the court finds either that the

objecting party has failed to establish extraordinary circumstances, or,

if the objecting party has established extraordinary circumstances, that

granting custody to the petitioning respondent parent would nonetheless

be in the child's best interests; or

(D) if a respondent parent has filed a petition for custody under

article six of this act and the other parent fails to consent to the

granting of the petition, the court finds that granting custody to the

petitioning respondent parent is in the child's best interests.

(a-1) Custody and visitation petition of non-respondent parent under

article six of this act. Where a proceeding filed by a non-respondent

parent pursuant to article six of this act is pending at the same time

as a proceeding brought in the family court pursuant to this article,

the court presiding over the proceeding under this article may jointly

hear the permanency hearing and the hearing on the custody and

visitation petition under article six of this act; provided however, the

court must determine the non-respondent parent's custody petition filed

under article six of this act in accordance with the terms of that

article.

(a-2) Custody and visitation petition of non-respondent parent under

section two hundred forty of the domestic relations law. Where a

proceeding brought in the supreme court involving the custody of, or

right to visitation with, any child of a marriage is pending at the same

time as a proceeding brought in the family court pursuant to this

article, the court presiding over the proceeding under this article may

jointly hear the permanency hearing and, upon referral from the supreme

court, the hearing to resolve the matter of custody or visitation in the

proceeding pending in the supreme court; provided however, the court

must determine the non-respondent parent's custodial rights in

accordance with the terms of paragraph (a) of subdivision one of section

two hundred forty of the domestic relations law.

(b) An order made in accordance with the provisions of this section

shall set forth the required findings as described in subdivision (a) of

this section, where applicable, including, if the guardian and local

department of social services have entered into an agreement to provide

kinship guardianship assistance payments for the child to the relative

under title ten of article six of the social services law, that a

fact-finding hearing pursuant to section one thousand fifty-one of this

chapter and a permanency hearing pursuant to section one thousand

eighty-nine of this part have occurred, and the compelling reasons that

exist for determining that the return home of the child are not in the

best interests of the child and are, therefore, not appropriate

permanency options for the child, and shall result in the termination of

any orders in effect pursuant to article ten of this act or pursuant to

this article. Notwithstanding any other provision of law, the court

shall not issue an order of supervision nor may the court require the

local department of social services to provide services to the

respondent or respondents when granting custody or guardianship pursuant

to article six of this act under this section or the granting of

guardianship under article seventeen of the surrogate's court procedure

act in accordance with this section.

(c) As part of the order granting custody or guardianship in

accordance with this section pursuant to article six of this act or the

granting of guardianship under article seventeen of the surrogate's

court procedure act, the court may require that the local department of

social services and the attorney for the child receive notice of, and be

made parties to, any subsequent proceeding to modify the order of

custody or guardianship granted pursuant to the article six proceeding;

provided, however, if the guardian and the local department of social

services have entered into an agreement to provide kinship guardianship

assistance payments for the child to the relative under title ten of

article six of the social services law, the order must require that the

local department of social services and the attorney for the child

receive notice of, and be made parties to, any such subsequent

proceeding involving custody or guardianship of the child.

(d) Any order entered pursuant to this section shall conclude the

court's jurisdiction over the article ten proceeding and the court shall

not maintain jurisdiction over the proceeding for further permanency

hearings.

(e) The court shall hold age appropriate consultation with the child,

however, if the youth has attained fourteen years of age, the court

shall ascertain his or her preference for a suitable guardian or

custodian. Notwithstanding any other section of law, where the youth is

over the age of eighteen, he or she shall consent to the appointment of

a suitable guardian or custodian.