Grandparents Must Establish “Extraordinary Circumstances” to Claim Custody of Child from Parent in New York

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New York law sets a very high bar for a non-parent, including a grandparent, who is seeking custody of a child. In order to deprive a parent of custody, a non-parent petitioner must show that the parent has expressly surrendered custody or demonstrated near-total indifference to the child. State law largely restricts standing to bring a custody suit to child welfare officials, who must demonstrate abuse or neglect, and grandparents, who must show “extraordinary circumstances.” The Appellate Division recently heard a mother’s appeal of an order awarding custody to the child’s paternal grandparents in Suarez v. Williams. It reversed the family court’s order, finding that the grandparents failed to meet the legal standard for custody.

The mother gave birth to the child in August 2002. She had two daughters, who were six and nine years old at the time and who had always lived with her. The child went to live with his paternal grandparents a few days after he was born, but the mother still saw the child several times a week. The father moved to Massachusetts when the child was two, and he lived there from that point on. When the child was about four years old, in 2006, the grandparents purchased a trailer and placed it across the street from their home in Barneveld. The mother lived there with her daughters and was able to see the child much more often.

The grandparents moved to Syracuse in 2006 and enrolled the child in school, but he saw his mother several times a week and stayed with her on the weekend. The grandparents moved the mother’s trailer to Liverpool, much closer to their home, in late 2008. The mother informed the grandparents in May 2012 that she planned on having the child live with her full-time and enrolling him in the school district where she resided. The grandparents filed a petition for custody. After a hearing, the family court granted joint legal custody of the child to the grandparents and the child’s father, awarding primary custody to the grandparents and visitation rights to the parents. The mother appealed.

The New York Court of Appeals’ 1976 ruling in Bennett v. Jeffreys identifies “extraordinary circumstances” in which a court may deprive a parent of custody, including “surrender, abandonment, persisting neglect, [or] unfitness.” It added “gross misconduct” and “other behavior evincing utter indifference and irresponsibility” in Matter of Male Infant L. in 1984. The New York Legislature amended the Domestic Relations Law in 2003 to add § 72(2), which allows a child’s grandparents to petition for custody if they can demonstrate “extraordinary circumstances.” This includes an “extended disruption of custody” between the parent and child, during which time the parent voluntarily gave up custody of the child to the grandparents for at least 24 months.

In Suarez, the grandparents argued that § 72(2) does not require them to show that the mother relinquished “all” custody of the child, and that the fact that the child primarily resided with the grandparents for more than 10 years was sufficient. The appellate court disagreed, ruling that the standard described by the Court of Appeals in Bennett still applies. The grandparents failed to establish abandonment, surrender, or gross neglect, while the mother established that she had an ongoing and close relationship with her son. The court reversed the custody order and dismissed the grandparents’ petition.

Ingrid Gherman has practiced in the area of family law, including child custody matters, in the greater New York City area for over 30 years. Contact us today online or at (212) 941-0767 to schedule a confidential consultation with an experienced and skilled family law advocate.

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Custody Disputes Between Parents and Non-Parent Relatives in New York, New York Divorce Attorney Blog, January 8, 2015

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