Legal Aid Lauds Appellate Ruling That Will Streamline the Custody Process for Children With Their Out-of-state Relatives

The Legal Aid Society applauded a recent New York State Appellate Division, First Department ruling against the New York City Administration for Children’s Service (ACS) that will streamline and expedite the Family Court’s ability to reunite children with their parents who live out-of-state.

This decision found that the Interstate Compact for the Placement of Children (ICPC) - a statutory agreement between all 50 states, the District of Columbia and the US Virgin Islands that governs the placement of children from one state into another state – created unnecessary custody barriers between children reuniting with out-of-state parents, causing many children to languish in foster care for months and even years at a time.

In its decision, the First Department stated: “It is somewhat ironic that a statute with a stated purpose of providing more opportunities for children in need of placement would be construed to effectively prohibit the placement of a child with a natural parent…

This bureaucratic barrier between the father and child infringes upon the father's substantive and procedural due process rights as a parent…

Finally, we acknowledge the arguments of the amici curiae, Lawyers for Children, Inc., and The National Association of Counsel for Children, who convincingly assert that, based on social science, medical research, and their "on the ground" experience, applying the ICPC to out-of-state parents - given the possibility that the process could keep a child in foster care, and apart from a loving, competent parent - harms children. There is no basis in the law to countenance this potential outcome.”

This case specifically involved a child who was removed from her mother’s care and placed into her aunt’s custody by ACS. Her father subsequently filed a custody petition and requested that the child be placed in his care pending the completion of the neglect proceeding and the determination of custody. Despite the father’s involvement in his child’s life after he and the child’s mother separated and ACS' concession that it did not have any “concern about the child residing with the father or reason to believe that the father was unfit or abusive or that he posed any imminent harm to the child,” ACS claimed that because of the father’s New Jersey residency, the ICPC approval process had to be completed and the placement approved prior to the him receiving custody of his child.

The Family Court denied the father’s motion and remanded his child to the care and custody of ACS. Legal Aid subsequently obtained a stay of the court’s order and appealed the decision to the First Department.

The Legal Aid Society’s Juvenile Rights Practice (JRP) secured this decision under the leadership of Staff Attorney Claire Merkine and Director of Appeals Judith Stern.

“The City’s interpretation of the Interstate Compact for the Placement of Children had evolved into a prohibitive mechanism that kept families apart,” said Dawne Mitchell, Attorney-In-Charge of the Juvenile Rights Practice. “We laud this precedent setting ruling that no longer deny our client a loving home with a family member. We hope that ACS will apply this case law to related current and pending matters.”