USA – NEW YORK Law and Practice Contributed by: Eleanor B. Alter, Adam John Wolff, Jenifer J. Foley and MaryJane Gurriell, Alter Wolff Foley & Stutman LLP
1.6 Same-Sex Relationships In New York, same-sex parents have the same legal rights and access to custody proceedings as oppo - site-sex parents. The initial process for obtaining cus - tody depends on the legal status of the relationship between the non-biological or non-adoptive parent and the child. Married same-sex spouses benefit from a marital presumption of parentage and may proceed directly to custody proceedings under the same framework as any divorcing couple. Unmar - ried same-sex partners who are not adoptive parents must first establish standing as a “parent” by proving, through clear and convincing evidence, that the par - ties agreed to conceive and raise the child together – a standard established by the New York Court of Appeals in Brooke S . B . v Elizabeth A . C . C ., 28 N.Y.3d 1 (2016). Once standing is established, all custody determinations are governed by the best interests of the child standard, and a parent’s sexual orientation alone is not a permissible basis for denying custody. 1.7 Adoption To obtain an order of adoption – which confers the complete legal relationship of parent and child – pro - spective adoptive parents must satisfy a series of requirements that fall into four broad categories: (i) eligibility to adopt; (ii) consent of required parties; (iii) completion of a home study or pre-placement inves - tigation; and (iv) finalisation through a court proceed - ing. The specific requirements differ depending on whether the adoption proceeds through an authorised agency or through a private placement. Upon entry of the order of adoption, the adoptive parents and child sustain toward each other the full legal relation of parent and child, with all attendant rights and duties.
2.2 Relocation Without Full Consent If the non-moving parent withholds consent, the relo - cating parent must petition the court for permission, and the court will evaluate the proposed move under the best interests of the child standard established by the New York Court of Appeals in Tropea v Tropea , 87 N.Y.2d 727 (1996). This case required courts to consider the circumstances of each individual family rather than apply a rigid presumption for or against relocation. The analysis considers a non-exhaustive list of factors, including a parent’s reasons for seek - ing or opposing a move, the child’s relationships with both parents, the effect of the move on future contact, the benefits the child may receive, and the feasibility of preserving a meaningful parent-child relationship. 2.3 Application to a State Authority for Permission to Relocate a Child 2.3.1 Factors Determining an Application for Relocation The factors include, but are not limited to: • each parent’s reasons for seeking or opposing the move; • the quality of the relationships between the child and each parent; • the impact of the move on the quantity and quality of the child’s future contact with the non-relocating parent; • the extent to which the child’s and relocating par - ent’s lives may be enhanced economically, emo - tionally, and educationally; and • the feasibility of preserving the relationship between the child and the non-relocating parent through an appropriate parenting-time arrange - ment. No single factor is automatically dispositive. The pre - dominant consideration is what outcome is most likely to serve the child’s best interests. In a post-judgment or post-order relocation dispute, the parent seeking permission to relocate generally bears the burden of establishing, by a preponder - ance of the evidence, that the proposed move is in the child’s best interests.
2. Relocation 2.1 Whose Consent Is Required for Relocation?
Under New York law, a parent who wishes to perma - nently relocate a child’s primary residence must obtain either (i) the written consent of the other parent; or (ii) authorisation from a court of competent jurisdiction. This requirement applies regardless of whether the parents share joint custody or one parent holds sole custody.
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