Establishes procedures regarding orders of post-termination visitation and/or contact between a child and such child's parent and for modification of such orders.
NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A4940B
SPONSOR: Tapia TITLE OF BILL:
An act to amend the family court act and the social services law, in
relation to establishing procedures regarding orders of post-termination
visitation and/or contact between a child and such child's parent
PURPOSE:
To allow post-termination visitation and/or contact between children and
their birth parents in termination of parental rights proceedings
provided it is deemed in the best interest of the child.
SUMMARY OF PROVISIONS:
*§ 1 -Amends section 634 of the family court act permitting, if proper,
an order of post-termination visitation and/or contact.
*§ 2 -Amends section 384-b of the social services law to add five new
subdivisions 14-18:
*Allows for granting of post-termination visitation/contact either on
the consent of the parent, child, and foster parents or foster care
agency or after a hearing at which the court finds both that
visitation/contact is in the best interest of the child and that any
party opposing an order of visitation/contact does not have a reasonable
basis for their opposition.
*Specifies that the party moving for an order of post-termination
visitation/contact has the burden of establishing that
visitation/contact is in the best interest of the child and that any
party opposing an order of visitation/contact does not have a reasonable
basis for their opposition.
*Provides for notification of involved parties of standing to partic-
ipate in the hearing to determine whether there should be post-termina-
tion visitation/contact.
*Requires the consent of a child over the age of fourteen to any post-
termination visitation/contact order.
*Grants the family court the discretion to determine the appropriate
form of post-termination visitation and/or contact.
*Bars repeated applications for post-termination visitation/contact
orders once original application has been denied.
*Bars the entry of post-termination visitation/contact order in cases of
severe or repeated abuse, unless the parent seeking such an order was
not the perpetrator of such abuse.
*Grants all parties to a post-termination visitation/contact order the
ability to move the court to enforce or modify the order where there is
a substantial change in circumstances and in the best interest of the
child. Clarifies that siblings' rights to seek contact under the domes-
tic relation taw are not limited by these subdivisions.
*Specifies that failure to comply with the terms of a post-termination
visitation/contact order is not a ground for invalidating either the
underlying termination of parental rights or the child's adoption.
*§ 3 - Provides for an effective date of 180 days after signed into law.
JUSTIFICATION:
The Preserving Family Bonds Act reflects a growing national consensus
that openness in adoption is beneficial for adoptees, birth parents, and
adoptive parents and brings New York law in line with the federal
government's most recent guidance on achieving permanency for children
in foster care, which encouraged states to make greater efforts to main-
tain children's ties to their families, and communities of origin even
after adoption.
This guidance made clear that in the vast majority of cases, "adoption
should be viewed as an opportunity to expand a child's experience of
family rather than replace their previous family," and that children's
relationships with their biological parents, siblings, and extended
family members should continue even after termination of parental rights
and adoption.
"Children do not need to have previous attachments severed in order to
form new ones. in fact, they will be better positioned to develop new
relationships if we work to preserve their original connections, sparing
them from additional grief and loss."
Current taw in New York provides for open adoption and post-termination
visitation and/or contact when a parent voluntarily surrenders their
parental rights but does not give courts any authority to allow for
contact between children and biological parents after a parent's rights
have been terminated.
For many years, New York State judges in the Second and Fourth Appellate
Divisions were authorized to order post-termination contact pursuant to
case law. That practice changed after the Court of Appeals held in June
2012 in Matter of Bailey ZZ that Judges did not have the explicit
authority to grant post-termination contact. The Court reasoned that
"the Legislature, the entity best suited to balance the critical social
policy choices and the delicate issues of family relations involved in
such matters, has not sanctioned judicial imposition of post-termination
contact where parental rights are terminated after a contested proceed-
ing."
As a result of the HalleyZZ decision, parents who do not surrender their
parental rights risk losing alt contact with their children if they
choose to defend their rights in a termination of parental rights
proceeding and lose-and children's ability to remain connected to their
parents hinges on the manner in which their parents' rights were
severed. Yet the difference between a voluntary surrender of parental
rights and an involuntary termination by the court is a procedural one;
it has nothing to do with the strength of the bond between the parent
and their child, or the child's need to maintain some form of contact
with their family of origin following adoption.
This legislation seeks to recognize the value that post-termination
contact between children and parents has for many children, especially
those who have strong bonds with their biological family members.
Specifically, it would provide the family court with the authority to
order post-termination visitation and/or contact between a child and
their biological parent after a termination of parental rights, subject
to the best interests of the child. The bill gives the court the
discretion to determine the appropriate type of contact for a given
family, which may include, but is not limited to: supervised visitation
by a family member or unsupervised visitation, telephone calls, emails,
letters, exchange of pictures, social media, and Skype or other forms of
video chat.
If the parent, child, and the child's foster parents do not all consent
to the order of post-termination visitation and/or contact, the bill
requires the court to hold a hearing to determine whether such an order
is In the child's best interest.
The bill ensures that parents and children who are parties to the termi-
nation proceeding, as well as the child's foster parents, have standing
to participate in this hearing. It places the burden of establishing
that contact would be in the child's best interest on the party seeking
the order of post-termination contact and requires that party also to
establish that any party opposed to the order tacks a reasonable basis
for their opposition.
While the termination of a parent's right to a child may ultimately be
best for that child, a growing body of research has shown that retaining
some contact with a biological family or parent may also be in that
child's best interest. Even when a biological parent is unable to care
for their child, post-termination contact allows the child to retain a
relationship with their parent and may allow that parent to play a posi-
tive role in the child's life.
Most children placed in the foster care system already have established
significant ties to their biological parents and other family members.
Even children who enter foster care at birth and are ultimately adopted
wilt likely have had regular contact and strong bonds with their biolog-
ical families for a lengthy time period, even years, prior to the time
the parent-child relationship is legally severed.
Children who enter foster care and are eventually adopted can experience
long-term emotional consequences stemming from the break-up of the
biological family, the disruption in the children's most basic source of
security, and the feelings of displacement that follow. Children who
have been adopted may experience insecurity and doubt in future
relationships, based on the termination of the biological parent-child
relationship.
Post-termination contact with a child's family of origin, where appro-
priate, may offer several benefits to children who may remain in foster
care or transition into an adoptive family. Continued contact after a
parent's rights have been terminated, whether voluntarily or involuntar-
ily, allows a child to maintain a relationship with his or her biolog-
ical parent. It may also help a child develop a more secure sense of
self by offering them the ability to better understand their parents,
biological family and what led to the termination of the legal relation-
ship.
Post-termination contact may also help a child with the transition that
comes after the termination of a parent's rights. This same child has
likely already transitioned from their biological family to foster care
and may now be dealing with the transition to their adoptive family.
Contact may offer children the opportunity to heal and transition
through communication, where appropriate and safe, with their biological
parents and come to accept their life story. Especially as children
age, they are better equipped to process the emotional burdens of what
happened in their families that led to the termination. Biological
parents can reinforce with their children, through post-termination
contact, that the termination was not the fault of the child and that
the parent still loves and cares for the child, even if he or she is
unable to parent them.
Many adopted children, no matter how their adoption was processed, find
themselves curious about their biological parents and their biological
ancestry. Satisfying a child's curiosity about where they come from has
been directly correlated to a child's well-being.
Studies have shown that the more children know about their family histo-
ries, even negative family histories, "the lower their anxiety, the
higher their self-esteem, the more internally controlled they were, the
better their family functioning, the fewer their behavioral problems,
and the more cohesive their families." Post-termination contact, where
appropriate, allows children access to their racial, ethnic, religious
and cultural histories, critical in developing a sense of self. Contact
may also become crucial to them later in life, including the exchange of
family medical and health information.
This bill will bring New York law in tine with the complex realities of
families involved in the child welfare system and will better allow
family courts to tailor dispositional orders in termination of parental
rights proceedings to meet the needs and best interests of children.
PRIOR LEGISLATIVE HISTORY:
Similar to S4203A of the 2019-20 session that was vetoed by the Governor
(VM 268 of 2019), and 56367 of the 2021-22 session that was likewise
vetoed (VM 84 of 2021), this bill addresses the veto as follows:
While maintaining its core commitment to ensuring that children have the
opportunity to maintain contact with their families of origin after
adoption when such contact is in their best interest, the language of
the proposed Preserving Family Bonds Act has been changed in significant
ways in response to concerns raised by the Governor's office, child
protective and foster care agencies, and others.
Most importantly, the bill now has a provision making it clear that an
order of post-termination visitation and/or contact can and should be
entered when the parties all consent; we hope and expect that many such
orders wilt be issued on this basis.
The bill also places an increased burden on the party seeking an order
of post-termination visitation and/or contact over the opposition of one
or more of the other parties. In addition to establishing that the order
sought would be in the child's best interests, the applicant must now
also establish that the party opposing the order does not have a reason-
able basis for their failure to consent. This latter requirement is
based on the case law interpreting the requirements of section 72 of the
Domestic Relations Law, which allows a court to order visitation between
a grandparent and their grandchild over the objection of the child's
parent and which was held to be constitutional by the Court of Appeals
in People ex rel. Sibley on Behalf of Sheppard v. Sheppard, 54 N.Y.2d
320 (1981).
In the 2019 veto memo, the Governor specifically expressed concerns
about the fact (1) that the bill might permit post-termination visita-
tion and/or contact to be ordered between a child and a parent who
severely or repeatedly abused them; (2) that the bill might permit post-
termination visitation and/or contact to be ordered over the objection
of the child in question; and (3) that the modification provision in the
bill might infringe on the rights of adoptive parents. The bill as now
drafted addresses each of these concerns.
The bill carves out exceptions for children fourteen years of age or
older who do not consent to contact, and for cases of severe or repeated
abuse, so that post-termination visitation and/or contact cannot be
ordered in such cases, unless the party seeking such contact was not the
perpetrator of the abuse.
Additionally, the bill contains an updated modification provision that
requires the party seeking to modify the post-termination visitation
and/or contact order to establish:
1. A substantial change in circumstances justifying such a modification;
2. That the modification is in the child's best interests; and
3. That any party opposing such a modification does not have a reason-
able basis for their failure to consent.
As discussed above, this latter requirement is based on the case law
regarding D.R.L. § 72, which was held to be constitutional by the Court
of Appeals.
The bill also addresses a number of other concerns that were raised
during the 2019 Legislative session, including concerns about the timing
of applications for post-termination visitation and/or contact and the
possibility that litigation surrounding such applications might delay
permanency for some children.
Specifically, the bill clarifies that a hearing regarding a party's
application for an order of post-termination visitation and/or contact
must occur simultaneously with the dispositional hearing in the
proceedings to terminate the parent's rights or, if there is no disposi-
tional hearing, at the point in the proceedings when the dispositional
hearing would have been held, i.e., subsequent to the close of fact-
finding in the termination proceeding and prior to the entry of an order
committing custody and guardianship of the child to the petitioning
foster care agency for the purposes of adoption.
The bill also specifies that an appeal from any order regarding the
application for post-termination visitation and/or contact shall not
provide a basis for delaying finalization of a child's adoption.
Moreover, this most recent amendment clarifies that a child who is a
party to a post-termination visitation and/or contact hearing must be
represented by an attorney for the child, and that, pursuant to Family
Court Act § 262(a)(iv), the foster parent, adoptive parent, legal guard-
ian or custodian has the right to assigned counsel in any proceedings
pursuant to Social Services Law § 384-b.
FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS:
To be determined.
EFFECTIVE DATE:
This act shall take effect on the one hundred eightieth day after it
shall have become a law.
STATE OF NEW YORK
________________________________________________________________________
4940--B
2025-2026 Regular Sessions
IN ASSEMBLY
February 10, 2025
___________
Introduced by M. of A. TAPIA, HYNDMAN, HEVESI, KELLES, CLARK, LUNSFORD,
RAGA, ALVAREZ, MEEKS, MAMDANI, REYES, SHRESTHA, ROMERO, TAYLOR, KIM,
FORREST, GALLAGHER -- read once and referred to the Committee on Judi-
ciary -- committee discharged, bill amended, ordered reprinted as
amended and recommitted to said committee -- again reported from said
committee with amendments, ordered reprinted as amended and recommit-
ted to said committee
AN ACT to amend the family court act and the social services law, in
relation to establishing procedures regarding orders of post-termina-
tion visitation and/or contact between a child and such child's parent
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Section 634 of the family court act, as amended by chapter
2 666 of the laws of 1976, is amended to read as follows:
3 § 634. Commitment of guardianship and custody; further orders. The
4 court may enter an order under section six hundred thirty-one of this
5 part committing the guardianship and custody of the child to the peti-
6 tioner on such conditions, if any, as it deems proper, including but not
7 limited to, an order of post-termination visitation and/or contact
8 pursuant to section three hundred eighty-four-b of the social services
9 law.
10 § 2. Section 384-b of the social services law is amended by adding six
11 new subdivisions 14, 15, 16, 17, 18, and 19 to read as follows:
12 14. (a) Upon application by any party to a proceeding under this
13 section, (i) the court shall order post-termination visitation and/or
14 contact between the child and such child's parent who is a party to such
15 proceeding on such terms and conditions as may be agreed upon by the
16 parent, the child, and the foster parent or authorized agency prior to
17 the entry of an order committing the guardianship and custody of the
18 child, and upon a determination by the court that such post-termination
19 visitation and/or contact would be in the best interest of the child; or
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD08174-04-5
A. 4940--B 2
1 (ii) if any party does not consent, the court may order post-termination
2 visitation and/or contact between the child and the child's parent after
3 a hearing at which the court has determined that (A) the party's consent
4 is being unreasonably withheld; and (B) post-termination visitation
5 and/or contact would be in the best interest of the child.
6 (b) The hearing to determine whether the court should enter an order
7 of post-termination visitation and/or contact shall be held either (i)
8 concurrently with a dispositional hearing held in the proceedings to
9 terminate the parent's rights pursuant to this section; or (ii) if no
10 dispositional hearing is held, subsequent to the close of the fact-find-
11 ing hearing on the underlying petition to terminate the parent's rights
12 and prior to the court's entry of an order committing the guardianship
13 and custody of the child. The court shall not hold such a hearing at
14 any other time.
15 (c) Parents and children who are parties to a termination proceeding
16 under article six of the family court act or this section, as well as
17 such child's foster parents, or, in the case of a child who is not in
18 the care of a foster parent, the authorized agency, shall have notice of
19 and standing to participate in the best interest post-termination visi-
20 tation and/or contact hearing. A child who is a party to a post-termina-
21 tion visitation and/or contact hearing must be represented by an attor-
22 ney for the child.
23 (d) The applicant shall have the burden of proof that (i) the opposing
24 party's consent has been unreasonably withheld; and (ii) post-termina-
25 tion visitation and/or contact is in the child's best interest.
26 (e) If the application for post-termination contact is denied after
27 this hearing, the applicant shall not have standing to bring the same
28 application in any other proceeding regarding the same child. However,
29 if the court grants any visitation and/or contact, an application to
30 modify the order, upon a showing of substantial change in circumstances,
31 may still be brought, pursuant to subdivision fifteen of this section.
32 (f) The court shall have discretion, depending on the best interests
33 of the child, to determine the nature of any post-termination visitation
34 and/or contact.
35 (g) Notwithstanding the provisions of paragraph (a) of this subdivi-
36 sion, in no event shall an order of post-termination visitation and/or
37 contact be entered where a court has entered a finding pursuant to para-
38 graph (a) or (b) of subdivision eight of this section that a parent
39 severely or repeatedly abused the child, except where a court has deter-
40 mined that the parent seeking post-termination visitation and/or contact
41 was not the perpetrator of such severe or repeated abuse of such child.
42 (h) If the child is over fourteen years of age, the consent of such
43 child to post-termination visitation and/or contact is required.
44 (i) The court in its order shall indicate such person or persons who
45 were given notice of the proceeding and whether such person or persons
46 appeared.
47 15. All parties to a post-termination visitation and/or contact order
48 entered pursuant to subdivision fourteen of this section, as well as any
49 person who subsequently becomes the child's legal guardian, custodian or
50 adoptive parent, may move the court to enforce or modify such order.
51 Upon motion for modification by any such party, (i) the court shall
52 enter an order modifying such post-termination visitation and/or contact
53 order on such terms and conditions as may be agreed upon by the parties,
54 upon a determination that such modification of the post-termination
55 visitation and/or contact order would be in the best interest of the
56 child, or, (ii) if any party does not consent, the court may enter an
A. 4940--B 3
1 order modifying such post-termination visitation and/or contact order,
2 after a hearing at which the court has determined that (A) the party's
3 consent is being unreasonably withheld; and (B) the modification would
4 be based on a showing of a substantial change in circumstances and the
5 best interests of the child.
6 16. Nothing in subdivision fourteen or fifteen of this section shall
7 be construed to limit the rights of half-siblings or siblings to seek
8 contact pursuant to subdivision nine of this section or section seven-
9 ty-one of the domestic relations law following a termination of parental
10 rights or adoption.
11 17. The failure of an authorized agency or a child's foster parent or
12 any other person who subsequently becomes the child's legal guardian,
13 custodian or adoptive parent to comply with the terms of the order of
14 post-termination visitation and/or contact shall not constitute a basis
15 for invalidating either the order committing the guardianship and custo-
16 dy of the child to the petitioner or any subsequent order of adoption
17 regarding such child.
18 18. Unless a stay of adoption proceedings is granted by a judge of the
19 family court or appellate court, an appeal from any order regarding the
20 application for post-termination visitation and/or contact shall not
21 provide a basis for delaying the finalization of a child's adoption.
22 19. Pursuant to paragraph (iv) of subdivision (a) of section two
23 hundred sixty-two of the family court act, the foster parent, adoptive
24 parent, legal guardian or custodian shall have the right to assigned
25 counsel in any proceedings pursuant to this section.
26 § 3. This act shall take effect on the one hundred eightieth day after
27 it shall have become a law.
