Landmark Ruling

The ruling states that family courts in New York can place a child who has been removed from their custodial parent's home with a willing noncustodial parent residing out of state, as long as the out-of-state parent's home is deemed suitable. This will have a significant impact on low-income children and their families.

The United States puts more children into foster care than any other country in the world. Occasionally, it is necessary and appropriate to separate children from their parents. The recent trend, however, has been to increase the ease with which state officials can take children into custody and prevent them from being reunited with a parent when there are concerns about their well-being – a determination that is highly subjective and very often applied to the detriment of low-income families with particular impact on marginalised communities.

Freshfields Special Counsel Scott Eisman teamed up with Christine Gottlieb, Director of New York University’s School of Law Family Defense Clinic (SLFDC), on a matter that is highly demonstrative of the critical and difficult issues at play in child welfare cases.  

"There’s a visceral reaction; everyone knows that’s one of the worst things the government can do – the worst abuses of government power – is to unnecessarily separate a child and a parent. Yet this was going on for decades in New York."
-Christine Gottlieb, Director of New York University’s School of Law Family Defense Clinic

Christine Gottlieb argued the case on behalf of the North Carolina parent – the first time she had argued before the New York Court of Appeals. Keen to provide his support and experience, Scott Eisman – a former Assistant Solicitor General in the New York State Attorney General’s Office – acted as second chair to Christine. A team of Associates, Elena Hadjimichael and Travis Panneck, assisted Scott on the case, writing briefs and helping to prepare for oral argument.

"In my first conversation with Christine, we spoke at length about the potential impact of the case," Scott says, adding that "the application of the law has often been to the detriment of disadvantaged families."

An amicus brief filed by the Lawyers for Children, a non-profit agency that protects the rights of foster care children in New York City, The Legal Aid Society, and the Children’s Law Center, said that "although only 17.6 percent of New Yorkers identify as Black, over half of the children in foster care are Black...The harm of parent-child separation for minority children is further heightened when they are removed from their cultural communities."

The issue before the court arose from a case in which a two-year-old child was, during the course of a child-protection proceeding, removed from their mother’s custody in Suffolk County, NY. The child’s father, who resided in North Carolina and was not accused of any wrongdoing, sought custody of the child. Instead of placing the child with his father, the New York City Administration for Children’s Services (ACS) argued that because the child’s father lived out of state, approval must be obtained through the Interstate Compact on the Placement of Children (ICPC), despite there being no concerns regarding the father’s ability to appropriately care for his child. Such cases are incredibly common in Family Court. The courts generally grant physical custody to the non-offending parent whether or not they live in a different state, unless their rights have been terminated or they are determined to be unfit. However, the court at first instance agreed with the ACS and placed the child into foster care while an ICPC approval process began.

The ICPC, an interstate compact between all states, regulates sending children across state lines for placement in foster care or adoption. This agreement is designed to ensure that out-of-state foster parents undergo a lengthy review process before a child is sent to their home. However, some courts in New York had held that the stringent requirements also applied when courts reunite children with biological parents living in another state.

New York’s highest court sided with our client. The court ruled unanimously that non-custodial parents should not be subjected to the ICPC’s provisions and that the ICPC should only be applied to foster care and preliminary adoptive homes.  The decision paves the way for children to be allowed to leave New York to live with a non-custodial parent.

Crediting the work of Scott Eisman, Christine Gottlieb noted that "it was children’s advocates, parents’ advocates and the private bar coming together to say we have to stop this." She added, "all the advocates, I think, worked on it because these harms were being inflicted on low-income families of color that it was allowed to go on for so long."

Scott Eisman welcomed the decision: "The hope is that this will provide for a more nuanced, fairer and more equitable treatment of children and parents from disadvantaged backgrounds who are seeking to reunite when the parent lives out of state."