by Noah Noonan*

The New York Family Court Act defines a “person legally responsible” for child abuse and neglect as a custodian, guardian, or any individual responsible for a child’s care. Matter of Yolanda D., the seminal case on this definition, held that to satisfy the third ‘catch-all’ category, the respondent must be the “functional equivalent” of a parent. Following that decision, New York State Family Courts deciding whether a respondent is a person legally responsible for a child’s care focused on the respondent’s role in the child’s life. Recently, though, the New York Court of Appeals readdressed the issue of how to characterize persons legally responsible in Matter of Trenasia J. The Court in Matter of Trenasia J. nominally applied the holding from Matter of Yolanda D.—that a person legally responsible must be a “functional equivalent” of a parent— but fundamentally changed the nature of this inquiry by allowing the simple existence of a familial relationship to be practically determinative. This Contribution argues that Matter of Trenasia J. improperly diverged from Matter of Yolanda D. and contravened the legislative intent behind the definition of a “person legally responsible.”

The New York Family Court Act (hereinafter “the Act”) protects children from abuse and neglect at the hands of “person[s] legally responsible” for them.1 That term is sweepingly defined in § 1012(g) of the Act as the child’s “custodian, guardian, [or] any other person responsible for the child’s care at the relevant time.”2 When family, friends, or neighbors become involved in the upbringing of a child, determining who constitutes a person legally responsible under the Act is an important, but often difficult, task.

One may be tempted by the text of the statute to believe any adult who is “responsible for the child’s care” is a person legally responsible, regardless of the nature of their relationship to the child. But, per the New York Court of Appeals’ decision in Matter of Yolanda D., that conclusion is incorrect.3 In that seminal case, the Court interpreted the language of § 1012(g) “in furtherance of the legislative intent.”4 The Court found that § 1012(g) embodies the “legislative recognition” that “parenting functions” are sometimes taken on by people who “perform caretaking duties” associated with parents.5 The Court therefore ruled that the third catch-all category of persons legally responsible includes only those persons who “serve as the functional equivalent of parents.”6 To facilitate this fact-intensive inquiry, the Court provided a non-exhaustive list of factors for consideration and insisted that the weight assigned to each depends on the circumstances of the case.7 It intended the application of these factors to answer the question of whether the adult’s role in providing and caring for the child makes them functionally equivalent to a parent.8

This Contribution argues that nineteen years after Matter of Yolanda D., the New York Court of Appeals in Matter of Trenasia J. placed undue importance on just one of the factors used to determine whether a respondent is the functional equivalent of a parent: the existence of a familial tie between a child and a respondent.9 This disproportionate emphasis comes at the expense of other relevant factors and wrongfully changes the focus of what makes someone the functional equivalent of a parent. Under Matter of Trenasia J., lower courts may make § 1012(g) decisions without inquiry into the “caretaking duties commonly associated with parents,” which the legislature intended to place at the heart of whether someone serves as the functional equivalent of a parent.10

Expanding the jurisdictional element of a “person legally responsible” beyond its intended bounds under Matter of Yolanda D. would increase the excessive burden that New York family courts already carry.11 Rather than “narrow[ing] the front door” to these overburdened courts, the overly inclusive formalist approach set forth in Matter of Trenasia J.—where a familial tie is practically determinative of a § 1012(g) analysis—threatens to do just the opposite.12 While child abuse and neglect cases often involve heinous acts, family courts are of limited jurisdiction, and where an adult who is not the functional equivalent of a parent harms a child, criminal courts are well equipped to hold them responsible.13 Further, this approach intrudes into the lives of extended family members and has the potential to dismantle relationships by placing family members in opposition to one another.

In Matter of Trenasia J., the respondent accused of abuse was an uncle of the subject child through marriage.14 To find that the uncle was a person legally responsible under the Act, the majority relied on (1) eight or nine contacts with the uncle over the course of a year, some of which included “family functions such as family reunions, holidays and birthday parties”; (2) the fact that the abuse occurred at the uncle’s home while he was the only adult present; and (3) the familial tie between the child and uncle through marriage.15 The majority’s rationale, however, did not address the caretaking responsibilities of the uncle, the nature of the contacts between the uncle and child, or the closeness of the relationship between the uncle and child.16

Pursuant to Matter of Yolanda D., the proper approach to the inquiry into whether a respondent is a person legally responsible is a functional one: a court’s goal in finding a person legally responsible is to address the function of the respondent in the child’s life.17 As noted in the dissent of Matter of Trenasia J., the record either did not address this key consideration or supported a finding that the uncle was not a person legally responsible.18 For instance, when the child would visit the uncle’s home, it was to have playdates with her cousins—a purpose entirely distinct from the provision of “duties commonly associated with parents,” which form “the common thread running through the various categories of persons legally responsible.”19 Further, the child had not visited the uncle’s home for nearly a year prior to the incident, and while in his presence all caretaking duties were undertaken by the child’s aunt.20 The Court in Matter of Yolanda D. spoke on these precise circumstances with particular clarity, stating that § 1012(g) “should not be construed to include persons who assume fleeting or temporary care of a child such as a supervisor of a [playdate].”21

The development of Matter of Yolanda D.’s precedent prior to Matter of Trenasia J. further confirms that the New York Court of Appeals erred in the latter case.22 While the Court is free to correct lower courts’ application of the law, Matter of Trenasia J. did not overrule, or even address, any of these prior cases.23 The opinion cites Matter of Yolanda D. and purports to leave that precedent intact, but fundamentally changes its approach to key inquiries.24 So long as Matter of Yolanda D. remains good law, Matter of Trenasia J. is a turn in the wrong direction.

Included in that ‘pre-Trenasia J.’ precedent are In re Bianca M. and Matter of Christopher W.25 In re Bianca M. held that a paramour of the subject child’s mother was a person legally responsible because he “share[d] to some degree in the supervisory responsibility for the children” by “regularly participat[ing] in the family setting.”26 Similarly, Matter of Christopher W. did not rely solely on the existence of a certain type of relationship to find that the respondent was a person legally responsible.27 Instead, the Court looked to the record as a whole, and relied on the factual inference that the respondent had a “substantial familiarity with the child.”28 These cases carried strong precedential effect, and their functional approach—where determinations are made from specific facts regarding the caretaking responsibilities of the respondent and their relationship with the child—is thus preferable to the standard in Matter of Trenasia J.29

Indeed, just one month prior to Matter of Trenasia J., the Family Court of Kings County cited to numerous cases exemplifying appropriate considerations for whether a respondent is a functional equivalent of a parent: “purchasing food and feeding the child . . . sleeping in the same bed as the child and the mother and representing himself to the caseworker as the child’s parent”;30 “[seeing] the child four times per week . . . bathing, feeding, and changing the child’s diaper, and acting as a father figure to the child”;31 “liv[ing] with the children for about a year, [having] daily contact with them [often alone] . . . [cooking and cleaning] and help[ing] the children prepare for school.”32 These inquiries embody Matter of Yolanda D.’s directive to only find persons legally responsible when they are the functional equivalent of a parent. Applying this precedent, the court in In re Destiny P. decided that the respondent was not a person legally responsible because they did not reside in the same home as the child or regularly have the child stay the night.33 Further, the record did not establish that the respondent provided for the child, assisted with their homework, or took on other “parental caretaking responsibilities.”34 Thus, deeming the respondent not a person legally responsible was the appropriate outcome because, as the Court found, the record established “at best” that the respondent was a playdate supervisor, which Matter of Yolanda D. “[specifically] did not intend to capture under § 1012(g).”35

Following Matter of Trenasia J., family courts may find that a family member respondent serves as the functional equivalent of a parent based only on a handful of temporally dispersed contacts in which the child visited the home of the respondent family member.36 In contravention to Matter of Yolanda D., this standard allows even attenuated familial ties to be practically determinative in finding that someone is functionally equivalent to a parent. As such, the New York Court of Appeals has improperly diverged from the “legislative recognition” of § 1012(g), which focused on the “parenting functions” and “care taking duties” of parents.37

This erroneous precedent from Mater of Trenasia J. can be seen in the recent case, Matter of Erica H.-J.38 In that case, the question before an intermediate appellate court was whether the girlfriend of the child’s father was a person legally responsible.39 The facts indicated that the child was with her father and his girlfriend for approximately thirty hours leading up to the discovery of abuse.40 However, prior to this incident, the father’s girlfriend had only met the child two to three times over the course of three years.41 Despite this extremely limited contact, the majority held that the father’s girlfriend was a “functional equivalent of a parent.”42 Indeed, the majority in Matter of Erica H.-J. disregarded this minimal contact between the girlfriend and child, and failed to cite the relevant factor from Matter of Yolanda D. of the “frequency and nature of contact” between the respondent and child.43 To substantiate their finding, the court cited a single overnight stay at the girlfriend’s home with the father and child, a separate instance during which the child was left alone with the girlfriend for under an hour, and the girlfriend’s testimony regarding her personal connection with the child.44

These facts are wholly insufficient to establish that the father’s girlfriend was a functional equivalent of a parent as a prescribed by Matter of Yolanda D. The dissenting judge in Matter of Erica H.-J. therefore correctly concluded that the respondent was not a person legally responsible because “[t]he factor upon which the majority principally relie[d] is [the respondent’s] relationship to the father.”45 In doing so, the opinion goes even further than Matter of Trenasia J. by placing excessive reliance on a relation to the child that is neither through blood nor marriage.

To be sure, the majority in Matter of Erica H.-J. added strength to these otherwise insufficient facts by improperly narrowing the temporal scope of their analysis—stating that they need only determine that the respondent “was a person legally responsible at the time [the child] sustained her injuries.”46 The majority did not cite to authority supporting this proposition, and its approach runs counter  to Matter of Yolanda D. The frequency of contact between the child and respondent is a listed factor in Matter of Yolanda D.47 By isolating the § 1012(g) analysis to the time at which the child sustained her injuries, this factor is made doctrinally irrelevant. Further, contrary to Matter of Yolanda D., this approach would allow for someone who “assume[s] fleeting or temporary care . . . such as a supervisor of a [playdate] or an overnight visitor” to be deemed a person legally responsible.48

In contrast to the majority in Matter of Erica H.-J., the dissent did not place undue emphasis on the respondent’s relationship to the child’s father, and highlighted that the father’s girlfriend was not “imbue[d] . . . with parental responsibility” since she did not “regularly participate in the family setting.”49 Thus, the dissent in Matter of Erica H.-J. declined the erroneous precedent of Matter of Trenasia J., and instead reflects a proper § 1012(g) determination under Matter of Yolanda D.

The nineteen-year-long precedent of Matter of Yolanda D. shows how the Court in Matter of Trenasia J. wrongfully changed the focus of the inquiry into what makes someone the functional equivalent of a parent. Rather than interrogate whether the respondent took on “caretaking duties commonly associated with parents”;50 how regularly the respondent “participated in the family setting”;51 or whether there was “substantial familiarity with the child”;52 the Court in Matter of Trenasia J. improperly adopted a formalistic approach to the inquiry. In doing so, the Court placed undue emphasis on the existence of a familial tie to the child at the expense of other relevant factors. This holding not only contravened long-standing precedent, but also departed from the legislative intent to have the third ‘catch-all’ category of § 1012(g) only cover the “functional equivalents” of parents.

* Noah Noonan is a J.D. Candidate (2024) at New York University School of Law. This Contribution is a commentary on the problem at the 2024 Domenick L. Gabrielli National Family Law Moot Court Tournament, hosted by Albany Law School. One of the questions presented was whether a New York State statute made an uncle who occasionally watched over their niece a “person legally responsible.” This Contribution addresses one side of the argument, and the views expressed herein do not necessarily represent the author’s views.

1. N.Y. Fam. Ct. Act §1012(a) (McKinney 2021).

2. Id.

3. Matter of Yolanda D., 673 N.E.2d 1228, 1231 (N.Y. 1996) (“[T]he common thread running through the various categories of persons legally responsible for a child’s care is that these persons serve as the functional equivalent of parents.”).

4. Id.

5. Id.

6. Id.

7. Id. (listing factors for use in determining whether a particular person has acted as the functional equivalent of a parent).

8. See id. (noting that the Act only applies in familial or household settings).

9. See generally Matter of Trenasia J., 32 N.E.3d 377 (N.Y. 2015).

10. See id. at 381–84 (Rivera, J., dissenting in part); see also Matter of Yolanda D., 673 N.E.2d at 1231 (“[P]arenting functions . . . may be discharged by other persons . . . who perform caretaking duties . . . . Thus, the common thread running through the various categories of persons legally responsible for a child’s care is that these persons serve as the functional equivalent of parents.”).

11. See generally N.Y.S. Comm. on Judiciary & N.Y. S. Comm. on Child. & Fam., The Crisis in New York’s Family Courts: A Report on the Senate Hearing from the NYS Senate Committee on Judiciary and NYS Senate Committee on Children & Families, S. 247, 1st Sess., at 3–4 (2024) (discussing the burden on New York’s Family Courts).

12. See id. at 7–8 (arguing for the expansion of social safety nets to reduce the need for Family Court proceedings).

13. H.M. v. E.T., 930 N.E.2d 206, 208 (N.Y. 2010) (“We have previously explained that Family Court is a court of limited jurisdiction, constrained to exercise only those powers granted to it by the State Constitution or by statute.” (citing Matter of Johna M.S. v. Russell E.S., 10 N.Y.3d 364, 366 (2008))).

14. Matter of Trenasia J., 32 N.E.3d at 378–79.

15. Id. at 380–81.

16. See id. at 381–83 (Rivera, J., dissenting in part) (arguing that the nature of the uncle’s contacts with the child suggested he was not serving as the functional equivalent of a parent).

17. Matter of Yolanda D., 673 N.E.2d at 1231 (“[T]he common thread running through the various categories of persons legally responsible for a child’s care is that these persons serve as the functional equivalent of parents.”).

18. Matter of Trenasia J., 32 N.E.3d at 383 (Rivera, J., dissenting in part) (“Without factual information as to the nature and frequency of [the uncle’s] contact with the child, the record is insufficient to establish he served as a functional equivalent of a parent in a household setting.” (citation omitted)).

19. Matter of Yolanda D., 673 N.E.2d at 1231.

20. Matter of Trenasia J., 32 N.E.3d at 382–83 (Rivera, J., dissenting in part).

21. Matter of Yolanda D., 673 N.E.2d at 1231–32.

22. See, e.g., In re Brent HH., 765 N.Y.S.2d 671, 672–73 (N.Y. App. Div. 2003); In re Isaiah L., 990 N.Y.S.2d 82, 83 (N.Y. App. Div. 2014).

23. See Matter of Trenasia J., 32 N.E.3d at 378–81.

24. See Alexsis Gordon, Redefining the Standard: Who Can Be A Person Legally Responsible for the Care of A Child Under the Family Court Act?, 33 Touro L. Rev. 517, 526–27 (2017).

25. In re Bianca M., 722 N.Y.S.2d 766 (N.Y. App. Div. 2001); Matter of Christopher W., 751 N.Y.S.2d 2 (N.Y. App. Div. 2002).

26. In re Bianca M., 722 N.Y.S.2d at 766.

27. Matter of Christopher W., 751 N.Y.S.2d at 2.

28. Id.

29. See, e.g., In re Jasmine A., 795 N.Y.S.2d 87, 89 (N.Y. App. Div. 2005); Matter of Keoni Daquan A., 937 N.Y.S.2d 160, 160 (N.Y. App. Div. 2012); In re Kevin N., 980 N.Y.S.2d 382, 382 (N.Y. App. Div. 2014); In re Carmelo G., 5 N.Y.S.3d 327 (N.Y. Fam. Ct. 2014).

30. In re Destiny P., 9 N.Y.S.3d 561, 565–66 (N.Y. Fam. Ct. 2015) (citing Matter of Isaiah L., 990 N.Y.S.2d at 82).

31. Id. at 566 (citing Matter of Angelo P., 952 N.Y.S.2d 644 (N.Y. App. Div. 2012)).

32. Id.

33. Id.

34. Id.

35. Id.

36. See Matter of Trenasia J., 32 N.E.3d at 382–83 (Rivera, J., dissenting in part) (arguing that under the majority’s interpretation of the Act, any familial relationship would be sufficient to trigger liability).

37. Matter of Yolanda D., 25 N.E.2d at 1231.

38. See Matter of Erica H.-J., 188 N.Y.S.3d 700, 709 (N.Y. App. Div. 2023) (Zayas, J., dissenting in part) (“The factor upon which the majority principally relies is Aisha’s relationship to the father.”).

39. Id. at 702 (majority opinion).

40. Id. at 702–03.

41. Id. at 708 (Zayas, J., dissenting in part).

42. Id. at 705 (majority opinion) (“[T]he weight of the factors support the Family Court’s determination that Aisha acted as the functional equivalent of a parent towards Erica during the relevant time period.” (citations omitted)).

43. See id. at 704–06 (describing how the court concluded the respondent was a person legally responsible despite their limited contact with the child).

44. Id..

45. Id. at 709 (Zayas, J., dissenting in part).

46. Id. at 705 (majority opinion).

47. Matter of Yolanda D., 673 N.E.2d at 1231.

48. Id. at 1231–32 (stating that persons who assume fleeting or temporary care are not meant to be persons legally responsible).

49. See Matter of Erica H.-J., 188 N.Y.S.3d at 709 (Zayas, J., dissenting in part) (quoting Matter of Bianca M., 722 N.Y.S.2d at 766)

50. Matter of Yolanda D., 88 N.Y.S.2d at 1231.

51. In re Bianca M., 2722 N.Y.S.2d at 766.

52. Matter of Christopher W., 751 N.Y.S.2d at 2.