Significant Update to the Family Court Act

by Sarah Hedden, Esq.

On October 29, 2019, an update to Section 1028-a of the Family Court Act was signed into law, paving the way for more relatives and “fictive kin” to be considered as placement resources when children are removed from their parents. It has expanded from relatives within three degrees of consanguinity to virtually anyone who had a relationship with the child prior to removal.

Why does this matter?

Research has consistently shown that children have better outcomes when, after being removed from their parents, they are placed with family instead of strangers. Changes in the law have reflected this, and continue to expand upon it.

The history

Section 1028-a was initially signed into law in 2006. It provided an avenue for relatives of children to be considered as placement resources. Prior to 2006, if a child was removed from his/her parents and the department of social services refused to place the child with a relative, that relative’s only recourse was to file a petition for custody. Those petitions would sit on the back burner while the neglect matter played out in court, and the child stayed in foster care. With the passage of 1028-a in 2006, that relative, in specific situations, would have the right to intervene and have an immediate hearing on whether the child should be placed with them.

The relative must:

• Be related to the child within three degrees of consanguinity

• Have applied to be a foster parent and not been denied

• Allege that the department’s refusal to place the child with the relative was not based on their failure to qualify as a foster parent

• File their motion within six months of removal or of being notified of the removal

• File their motion no later than twelve months after removal

The expansion has removed the provision that the relative had to be related to the child within three degrees of consanguinity and has adopted the definition of “relative” as set forth in Social Services Law section 458(a). In fact, the person does not even have to be related to the child; they can be fictive kin – “an adult with a positive relationship with the child, including, but not limited to, a step-parent, godparent, neighbor, or family friend.” SSL § 458(a)(3)(c)

This new legislation will help reduce the trauma experienced by children when they are removed from their parents, and will help to keep parents’ rights intact.