Authored By: Lisa Gardner, Esq.
Recently, our firm succeeded in convincing the Appellate Division Second Department that the Family Court got it wrong when it awarded custody of a four-year old girl in foster care to her maternal uncle instead of the foster parents that had cared for her since birth. The Family Court felt that the most important consideration was the biological connection, but the Appellate Division said that this is not necessarily so when there is a lack of other basis, as in this case.
Our firm represented the foster parents, who were seeking to retain custody of the child so that they could ultimately adopt her. The child had bonded with them and was healthy, happy, and well provided for. The child's maternal uncle, living in Venezuela, was also seeking custody of the child. An award of custody to the uncle meant a move for the four-year old to a strange country, with unfamiliar extended family where she did not speak the language. Ultimately, the Appellate Division ruled that, after considering all factors, an award of custody to a biological relative over the foster parents was not in the child's best interests. Read the full decision here: http://www.nycourts.gov/reporter/3dseries/2013/2013_05829.htm.
This case involved what is true in every custody case: that there is no single reason that goes into a court's custody decision. In every case, the judge is bound to consider the totality of the circumstances in determining what is in the child's best interests.