CUSTODY DISPUTES AND DELEGATING PARENTING

A common issue I have seen in custody disputes is as follows: Parent A is non-custodial parent with parenting time but Parent B, the custodial parent, argues that if Parent A is unable, due to work or any other reason, to exercise parenting time, the child remains with Parent B. But Parent A comes back with this argument: if I am unable to, let my parent, friend, family member take care of the child. Parent B argues that all of Parent A's parenting time should have Parent A present and if Parent A is unable to be present, then Parent A loses that time.

Without opining on whose position is in the best interests of the child, some legislatures have addressed this issue with military personnel. Section 306 of the Uniform Deployed Parents Custody & Visitation Act (UDPCVA). Section 306 allows the court, at the request of a deploying parent, to grant the service member’s portion of custodial responsibility in the form of caretaking authority to an adult nonparent who is either a family member or with whom the child has a close and substantial relationship.  

New York  has not enacted this although it has been proposed. Currently, N.Y. Dom. Rel. §75-L; N.Y. Dom. Rel. §240(a-2) are the relevant statutes which basically provide that  when the non-custodial parent is not available for parenting time due to deployment, the court shall consider and provide for, if feasible and if in the best interests of the child, contact between the military service member and his or her child including, but not limited to, electronic communication by e-mail, webcam, telephone, or other available means. New York also provides in New York General Obligations Law § 5-1551. Power of parent to designate a person in parental relation:

"A parent of a minor or incapacitated person may designate another person as a person in parental relation to such minor or incapacitated person pursuant to sections twenty-one hundred sixty-four and twenty-five hundred four of the public health law and sections two and thirty-two hundred twelve of the education law for a period not exceeding twelve months provided that there is no prior order of any court in any jurisdiction currently in effect that would prohibit such parent from himself or herself exercising the same or similar authority, and provided further, that, in the case where a court has ordered that both parents must agree on education or health decisions regarding the child, a designation pursuant to this subdivision shall not be valid unless both parents have consented thereto.  Such designation shall be in the form prescribed by section 5-1552 of this title, and may be presented to any school, health care provider or health plan that requires such designation by either the parent or the designee."

Also, New York's Surrogate's Court Procedure Act § 1726 permits standby guardian designations to take effect when the parents becomes subject to an administrative separation such that care and supervision of the child will be interrupted or cannot be provided.