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ALTHOUGH FATHER’S GIRLFRIEND HAD ONLY SEEN THE ABUSED CHILD TWO OR THREE TIMES SHE WAS DEEMED A PERSON LEGALLY RESPONSIBLE FOR THE CHILD; THERE WAS A STRONG DISSENT (SECOND DEPT).

​The Second Department, over an extensive dissent, determined father’s girlfriend, Aisha, who only seen the abused child, Erica, two or three times, was correctly deemed a person legally responsible for Erica. The decision and the dissent are too fact-specific to fairly summarize here:

“Determining whether a particular person has acted as the functional equivalent of a parent is a discretionary, fact-intensive inquiry which will vary according to the particular circumstances of each case. Factors such as the frequency and nature of the contact between the child and respondent, the nature and extent of the control exercised by the respondent over the child’s environment, the duration of the respondent’s contact with the child, and the respondent’s relationship to the child’s parent(s) are some of the variables which should be considered and weighed by a court” … . “The factors listed here are not meant to be exhaustive, but merely illustrate some of the salient considerations in making an appropriate determination” … . Although “article 10 should not be construed to include persons who assume fleeting or temporary care of a child such as a supervisor of a play-date or an overnight visitor” … , the definition “expressly encompasses paramours who regularly participate in the family setting and who therefore share to some degree in the supervisory responsibility for the children” … .

Aisha’s relationship to the father, as well as Erica, weighs in favor of a finding that she was a person legally responsible for Erica during the relevant time period … . In January 2016, when Erica was injured, Aisha was the father’s girlfriend and the mother of their child Eric Jr., Erica’s half-sibling. Aisha began a romantic relationship with the father in 2013 and met Erica for the first time in August 2014, when Erica was approximately six months old. Aisha testified that in January 2016, she “treated [Erica] like if she was my child” … . Aisha further testified that she brought Erica to her niece’s birthday party because Erica was going to be her stepdaughter and that “any child of [the father’s] is mine[ ], so any children that [the father] has is a part of me as well.” The father testified that the interaction between Aisha and Erica was “as of a parent to a child,” and further testified that Aisha “treated Erica no different than she treated Eric [Jr.].” Matter of Erica H.-J. (Tarel H.), 2023 NY Slip Op 02662, Second Dept 5-17-23

Practice Point: Here father’s girlfriend was deemed a person legally responsible for the abused child, despite the fact she had seen the child only two or three times. There was a strong dissent.

 

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