PARENTAL RESPONSIBILITY FOR ACTS OF MINOR

To many, parenting seems like it never ends but legally, certain parental responsibilities do.

For example, under General Obligations Law 3-112,  parents and legal guardians are responsible for the actions of their minor children which, under this statute, applies if a minor child is over 10, and less than 18, years old. Here are some cases:

In Peerless Insurance Co. v. Prim, 2007 NY Slip Op 32178 - NY: Supreme Court 2007, the mother of a 14 year old girl was responsible for damages caused when her daughter drove through the parking lot of the Mattituck Plaza, lost control, accelerated, and then drove through an ice-cream shop. 

In Rivera v. Meehan, 2012 NY Slip Op 51652 - NY: Appellate Term, 2nd Dept. 2012, the parents of a 17 year old boy were responsible for landscaping damages to their neighbor's property caused by their son's ATV.

THREE PARTIES, THREE PARENTS

MATTER OF DAVID S. v. SAMANTHA G., 2018 NY Slip Op 28110 - NY: Family Court 2018:

"The landmark Court of Appeals case Brooke S.B. changed the legal landscape regarding the rights of a partner who is not a legal parent to seek custody and visitation. Brooke S.B. held that "where a partner shows by clear and convincing evidence that the parties agreed to conceive a child and to raise the child together, the non-biological, non-adoptive partner has standing to seek visitation and custody under Domestic Relations Law §70" (id. at 15). Domestic Relations Law §70 (a) provides:

Where a minor child is residing within this state, either parent may apply to the supreme court for a writ of habeas corpus to have such minor child brought before such court; and on the return thereof, the court, on due consideration may award the natural guardianship, charge and custody of such child to either parent for such time, under such regulations and restrictions, and with such provisions and directions, as the case may require, and may at any time thereafter vacate or modify such order. In all cases there shall be no prima facie right to the custody of the child in either parent, but the court shall determine solely what is for the best interest of the child, and what will best promote its welfare and happiness, and make award accordingly (emphasis added).

Significantly, Brooke S.B. overruled the Court's ruling in Allison D. v Virginia M. (77 NY2d 651 [1991]), which denied a partner who lacked a biological or adoptive relationship with a child the right to seek visitation under DRL §70(a), despite having an established "parental" type relationship with the child. In determining to break with precedent, the Brooke S.B. court gave primary consideration to the well-being of children being raised in nontraditional families and to how the Allison D. decision had negatively impacted those children (Brooke S.B. at 19-29). In making its ruling, the Brooke S.B. court also recognized the fundamental right of parents to control the upbringing of their children and required that the relationship between the child and the partner came into being with the consent of the legal parent (id. at 26).

In reaching its decision, the Brooke S.B. court relied heavily on the dissent of Judge Kaye in Allison D. Judge Kaye foresaw that the Allison D. ruling would "`fall [] hardest' on the millions of children raised in nontraditional families — including families headed by same-sex couples, unmarried opposite-sex couples, and stepparents" (Brooke S.B. at 20 citing Allison D., 658-660 [Kaye, J. dissenting].) "The dissent asserted that, because DRL §70 does not define `parent' — and because the statute made express reference to `the best interests of the child,' the court was free to draft a definition that accommodated the welfare of the child" (id.). The dissent criticized the majority for turning its back "on a tradition of reading section §70 so as to promote the welfare of the children" (id.).

In determining to overrule Allison D., the Brooke S.B. court also noted that legal commentators have "taken issue with Allison D. for its negative impact on children" and that "[a] growing body of social science reveals the trauma children suffer as a result of separation from a primary attachment figure — such as a de facto parent — regardless of the figure's biological or adoptive ties to the children" (id. at 25-26 [citations omitted]).

Against this backdrop, this court is now called upon to determine if the ruling in Brooke S.B. would be applicable to the situation at hand, where three — not just two — parties agreed to a preconception plan to raise a child together. It is not disputed that Ms. G. and Misters S. and T. consented to a preconception plan to establish a family where the child to be conceived would have three parents (albeit in two homes) and proceeded to effectuate that plan. The two men alternated the delivery of their sperm day by day to artificially inseminate Ms. G., and the three parties jointly announced their impending parenthood when Ms. G. became pregnant. The three parties jointly chose and paid for the midwife, were present when the child Matthew was born, and selected names for the child that recognized all three parties. The three parties agreed on a pediatrician and on a health insurance plan, and were all present at the hospital when Matthew needed hernia surgery at the age of two months. Misters S. and T. currently enjoy regular parenting time with Matthew.

The court finds that under the above circumstances where the three parties entered and followed through with a preconception plan to raise a child together in a tri-parent arrangement, the biological father's spouse has standing to seek custody and visitation as a parent pursuant to Brooke S.B. In making this decision, this court is specifically taking into consideration that the relationship between Mr. T. and Matthew came into being with the consent and blessing of the two biological parents and that both biological parents agree that Mr. T. should have standing to seek custody and visitation.

The court further finds that its ruling that Mr. T. has standing to seek custody and visitation despite the existence of two legal parents, to be consistent with the fundamental principle of Brooke S.B. — that DRL §70 must be read to effectuate the welfare and best interests of children, particularly those who are being raised in a non-traditional family structure (id. at 20). The parent-child relationships fostered by children like Matthew, who are being raised in a tri-parent arrangement, should be entitled to no less protection than children raised by two parties.^["

PARENTING SEXUALLY ACTIVE TEENS CAN LEAD TO LEGAL ISSUES

According to Planned Parenthood, once a parent is aware that their teen is sexually active, ".....parents can make a difference. We can help our teens think about their relationships. We can talk with them about the relationship responsibilities they have. We can encourage them to always use birth control and practice safer sex. And we can reassure them that we will continue provide loving homes and work to build and maintain a good relationship with them."

But do the courts agree with that premise when custody issues are involved? When is allowing your teenager to have an intimate relationship constitute neglect? What is the effect on any younger children in the household?

Matter of Lawton v Lawton 2016 NY Slip Op 01216 Decided on February 18, 2016 Appellate Division, Third Department:

"Petitioner (hereinafter the father) and respondent (hereinafter the mother) are the parents of two children (born in 2005 and 2006). Although married, they have been separated since 2011. In accordance with a verbal agreement, the mother had primary physical custody of the children and the father had parenting time with them every other weekend. In March 2013, the Schoharie County Department of Social Services (hereinafter DSS)
filed a neglect petition against the mother for allowing her 16-year-old daughter — who is unrelated to the father — to have sex with the 22-year-old son of the mother's boyfriend. In November 2013, the mother consented to a fact-finding order wherein the 16-year-old child and the children were adjudicated as neglected. Despite the adjudication, the custodial arrangement between the parties continued. In March 2014, the father filed a temporary emergency custody petition based on his claim that the mother was unemployed and living in a hotel with the children. In April 2014, DSS filed a second neglect petition against the mother for allowing another daughter — a 15 year old also unrelated to the father — to spend weekends overnight and engage in a sexual relationship with that daughter's 16-year-old boyfriend. After a number of appearances and after the mother filed a petition seeking custody, a fact-finding hearing began in July 2014. After hearing testimony from the father, his fiancée and the mother and after a [*2]Lincoln hearing, Family Court granted joint legal custody to the parties, primary physical custody to the father and parenting time to the mother every weekend and on Wednesdays after school. The mother now appeals.

The focus in an initial custody determination is the best interests of the children, which involves consideration of factors including "the parents' past performance and relative fitness, their willingness to foster a positive relationship between the child[ren] and the other parent, as well as their ability to maintain a stable home environment and provide for the child[ren]'s overall well-being" (Matter of Adams v Morris, 111 AD3d 1069, 1069-1070 [2013]; accord Matter of Daniel TT. v Diana TT., 127 AD3d 1514, 1514-1515 [2015]; Matter of Jarren S. v Shaming T., 117 AD3d 1109, 1110 [2014]). The children's wishes should be considered but are not dispositive (see Rumpff v Schorpp, 133 AD3d 1109, 1113 [2015]; Matter of Rivera v LaSalle, 84 AD3d 1436, 1438 [2011]). Because Family Court has the best ability to assess the witnesses' demeanor and credibility, we will not disturb a custody determination unless it lacks a sound and substantial basis in the record (see Matter of Daniel TT. v Diana TT., 127 AD3d at 1515; Matter of Kayla Y. v Peter Z., 125 AD3d 1126, 1127 [2015]).

Here, as Family Court noted, the mother had been the children's primary caregiver, but the father had taken on a more active role since the neglect adjudication. Further, the record indicates that, although the mother had found a job and an apartment by the time of the fact-finding hearing, she was unemployed and living with the children in a hotel when the father filed his petition. By comparison, the father testified that he had been working at the same job for nearly six years and had been living in the same apartment with his fiancée for nearly two years. He testified that the children were sharing a room, but that he was looking into purchasing a home to provide more space for the children and the 10-month-old child that he had with his fiancée.

We are not persuaded by the mother's argument, joined by the attorney for the children, that Family Court placed too much emphasis on the neglect adjudication. The incident underlying the neglect adjudication reflected a serious lack of judgment — a point that the mother conceded and was continuing to work to address (see Matter of Rosetta BB. v Joseph DD., 125 AD3d 1205, 1206 [2015]). Based on the record, we agree with the court's view that it was faced with the dilemma of "choosing between two less than perfect household situations." In such a case, it is particularly important to defer to the court's determination (see Matter of Windom v Pemberton, 119 AD3d 999, 999 [2014]). Based on the record as a whole, we conclude that Family Court's determination to award primary physical custody to the father — without prejudice to the mother's application for a modification upon the termination of the second neglect proceeding — has sound and substantial support in the record."

Note: the teenagers who the mother allowed to be sexually active were the half-sisters of the younger children who were subject to the custody case.