Under New York domestic relations law, unmarried fathers were often considered ineligible for hearings to prove their fitness to parent if their child was put into foster care by the state. But a new law changes that.
On December 30, 2022, Governor Kathy Holchul signed the Parental Equity Act, which amended decades-old legislation to provide unwed fathers a full and fair opportunity to maintain custody of their child. The new law was written by Christine Gottlieb ’97, director of NYU Law’s Family Defense Clinic, and Amy Mulzer, a senior attorney at Brooklyn Defender Services and a former Family Defense Clinic fellow.
Gottlieb and Mulzer drafted the bill with two goals in mind: to reunite children with parents whenever safely possible, and to deconstruct the gender stereotypes that they say the previous law perpetuated.
In this Q&A, Gottlieb talks about her 20 years in the Family Defense Clinic, the court case that inspired the Parental Equity Act, and the work that went into getting the bill to the governor’s desk.
Tell us about the obstacles unmarried fathers met when fighting to regain custody of their child put into foster care before the Parental Equity Act.
Before this law passed, for decades in New York, dating back to a very different era, the laws had been written to treat unmarried fathers differently than mothers or married fathers. It was assumed that unmarried fathers were not going to be involved with their children. There was sexism about the role of fathers, as well as a discrimination against “illegitimate” children born “out of wedlock,” terms we would never use today.
Under the law, parents have strong rights to their children. The Constitution protects those rights: the rights of parents to raise their children as they see fit, and to have care and custody of them. The state can intervene if need be, to protect the safety of a child—but that is a very narrowly tailored authority that the government has. There has to be a demonstrable level of risk to the child. When the state does make a showing of serious risk, children are moved into foster care. Then, under New York state law, the state agencies involved are obliged to work diligently with the parents to achieve family reunification. It is very broadly understood and codified in New York state law that the best outcome for children is almost always reunification with their parents.
Of course, there is a small subset of cases in which the state and courts ultimately decide that a child cannot go home to their parents. In New York, this scenario is when the Domestic Relations Law comes into play. It was designed largely to facilitate private adoptions of children—for example, if a pregnant woman decides to give birth and then voluntarily puts the baby up for adoption. That law was passed over a half century ago. Despite efforts to bring it into line with requirements laid down by the Supreme Court, I believe that it remained blatantly unconstitutional. Under this law, no child could be adopted without the consent of the mother, unless there was a very strong basis to terminate the mother’s rights. Similarly, if a father was married to the mother, the child could not be adopted without the father’s consent. However, the statute also stated that if two parents were not married, the father’s right to prevent an adoption of his child was always contingent on his paying child support.
At the time this law was drafted, it may have made sense in ways that it doesn’t now. If a father was paying child support, that was considered to be confirmation that he wanted to be involved in the child’s life—in an era when it was assumed that most unmarried fathers would not want to be involved. In 2023, most unmarried fathers do want to be involved in their childrens’ lives, and show their commitment in a variety of ways, many of which have nothing to do with financial support.
It is unfair and, I would say, unconstitutional to say that fathers must show their commitment to parenting through money, rather than in other ways. But there was an additional level of unfairness occurring under the old New York regime. When children go into foster care in New York City, fathers are not asked to pay child support. If they proactively offer to pay child support, they are told they cannot because there is no mechanism for state agencies to receive their funds. It’s Kafkaesque—fathers were being penalized for not paying, but they cannot pay. It’s indefensible.
This provision of New York’s Domestic Relations Law was developed for private adoptions, but became more of an issue when it came to public adoptions—adoptions out of foster care. Since the 1970s, the number of children going into foster care in the United States has exploded. Many, many more children are being involuntarily put into foster care than used to be, and there has been an unprecedented push to keep those children from reuniting with their families.
If the state wants to move a child into foster care, it files for termination of parental rights for women and for married men. That parent then has the right to a trial. But with respect to unmarried fathers, what the state began to do was not to file a petition to terminate parental rights, even when they wanted the child adopted. The state would just say to the court, “There is no father who has legal rights to this child.” So relationships between those children and their fathers were destroyed without the chance for a trial, and there lies the difference between the treatment of unmarried fathers and other parents under these circumstances.
Which case inspired you and Mulzer to create the Parental Equity Act?
We have been aware of this problem for a long time here at the Family Defense Clinic, but one appeal brought by the clinic did prove particularly inspiring. It is called the Matter of Amanda N., and was litigated by Amy Mulzer and me.
We represented Mr. N, who had been raising his child Amanda with her mother, who he lived with. While Mr. N. was out of town for a family business obligation, Amanda went into foster care when her mother was accused of using corporal punishment. Mr. N. returned to town and began working with the agency, which gave a service plan to both parents. These service plans are typical in efforts to reunify children.
Tragically, the mother then unexpectedly died. The agency stated that Amanda should be adopted, and claimed that Mr. N. did not have a right to a trial to fight this decision—that he was not a legal father because he had not been married to Amanda’s mother, even though he had been raising this child. So we litigated that for Mr. N., and were really hoping to use it as a test case to have this portion of the Domestic Relations statute deemed unconstitutional. We won the case for Mr. N., but the court declined to make a ruling that would affect other fathers in similar situations. The court agreed that Mr. N. was a father who should have parental rights, but did not accept our invitation to address the law more broadly. We realized then that this was an issue that called for legislative change, and drafted the Parental Equity Act.
We brought the act to the Parent Leadership Action Network (PLAN), a grassroots organization that the Family Defense Clinic works very closely with. PLAN is a vibrant, community-based organization in which families who have been harmed by the family regulation system partner with lawyers, social workers, and other advocates to pursue systemic change. PLAN helped us bring Senator Jabari Bridgeport and Assembly Member Andy Hevesi on as sponsors of the legislation, and to build broad-based support for it.
The Parental Equity Act passed in the Senate in 2021, then passed in the Assembly in 2022. Finally, Governor Kathy Holchul signed our law into effect on December 30, 2022.
Tell us about the scope of research you did prior to drafting language for the Parental Equity Act.
We started working on the issue many years ago, and made the shift from a litigation strategy to a legislative strategy in 2020. A lot of the research is summarized in “New York’s Unconstitutional Treatment of Unwed Fathers of Children in Foster Care,” an article which appeared in the NYU Review of Law and Social Change just last year. I co-wrote that article with Fiorello LaGuardia Professor of Clinical Law Emeritus and Family Defense Clinic founder Martin Guggenheim ’71.
Originally, our research focused on legislative history. We came to understand that the Domestic Relations Law had been designed for a different world, and now was being imposed on the foster care system in a way that just did not fit.
How has your work writing the Parental Equity Act informed your role leading the Family Defense Clinic, which you first joined as a fellow in 2002?
As advocates, it was a great experience to see that we can achieve victories not only in the courtroom, but also through legislation. The best public interest lawyers continually push themselves to consider new ways to pursue justice and this project was part of a broader effort to expand the kinds of advocacy that the clinic does.
This kind of victory has become possible because of a new level of activism in the communities most impacted by the family regulation system. The vibrancy of the calls for change provide a unique opportunity to collaborate with community partners to fight together for systemic change.
Writing the Parental Equity Act and seeing it get passed was extremely gratifying. It has motivated the clinic to be even more ambitious in our next pieces of advocacy. We are in the process of drafting some new legislation to strongly push back on the policy of favoring termination of parental rights. In my view, terminating parental rights should be a last resort, and we should not be permanently severing family ties when it is not absolutely necessary.
Posted on February 8, 2023. This story was first published on the NYU website. Image courtesy of Getty Images.