It is well settled law that,absent extraordinary circumstances,
a nonparent or putative father may not commence a custody case. Extraordinary circumstances, as defined by law, must include allegations of surrender, abandonment, persisting neglect, or
unfitness. See the following cases.
(Matter of Dickson v. Lascaris, 53 N.Y.2d 204, 208, 440 N.Y.S.2d 884, 423
N.E.2d 361, quoting Matter of Bennett v. Jeffreys, 40 N.Y.2d at 544, 387 N.Y.S.2d 821,
356 N.E.2d 277; see Matter of Herrera v. Vallejo, 107 A.D.3d 714,966 N.Y.S.2d
206; Matter of Commissioner of Social Servs. of City of N.YJSarah Pl, 216 A.D.2d 387,
629 N.Y.S.2d 47).
There is also certain case law that suggests that if the child lived several years with a nonparent that this might qualify as extraordinary circumstances since the child has established a relationship with the nonparent and since it is in the best interests of any child to continue patterns as to living circumstances sch as schools, friends religion and activities. However, the Legislature has clearly intended that paternity be judicially determined such that names and addresses of any person adjudicated as a father of a child born out of wedlock is to be recorded in the putative father registry. Social Services Law § 372-c. And there is no provision in the Statute that I am aware of which would confer paternity retroactively. So what does this mean in practical terms? If you are unmarried but believe you are the biological father ten sue for paternity in Family Court before you file for custody, or else be at the hospital to acknowledge paternity upon birth. While this is not always possible it is preferable.
In comparing the rights of a biological parent and a nonparent the parent’s rights are always superior to that of the parent. Only when the nonparent can establish that extraordinary circumstances exist may the Court then inquire into the best interests of the child and hold a best interest fact finding. See the following cases which establish this as a matter of law. See Matter of Jackson v. Euson, 153 A.D.3d 1655, 1656, 61 N.Y.S.3d 415 [4th Dept. 2017].
In the case of Komenda v Dininny 115 A.D.3d 1349 the Court held
that:
“….In fact, the burden of proof is always on the noncustodial party {Emphasis Added} to show to the court that extraordinary circumstances exist even when the parent consented to a prior order allowing them custody. (Howard, 64 A.D.3d at 1147, 881 N.Y.S.2d 766; see *1579 Matter of Katherine D. v. Lawrence D., 32 A.D.3d 1350, 1351, 822 N.Y.S.2d 349 [4th Dept. 2006], lv denied 7 N.Y.3d 717, 827 N.Y.S.2d 688, 860 N.E.2d 990 [2006]). Thus the burden of proof is very high. This Court held, in pertinent part, that: “….On appeal from an order granting sole custody of the subject child to petitioner-respondent (petitioner), a nonparent, respondent-appellant father contends that there was no showing of extraordinary circumstances. We reject that contention. It is well settled that, “as between a parent and a nonparent, the parent has a superior right to custody that cannot be denied unless the nonparent establishes that the parent has relinquished that right because of ‘surrender, abandonment, persisting neglect, unfitness or other like extraordinary circumstances’ ” (Matter of Gary G. v. Roslyn P., 248 A.D.2d 980, 981, 670 N.Y.S.2d 270, quoting Matter of Bennett v. Jeffreys, 40 N.Y.2d 543, 544, 387 N.Y.S.2d 821, 356 N.E.2d 277; see Matter of Howard v. McLoughlin, 64 A.D.3d 1147, 1147, 881 N.Y.S.2d 766). Here, the record establishes that the father had a history of alcohol, substance, and prescription drug **190 abuse; that he used heroin during the period of time that he had custody of the subject child; and that he ultimately lost custody of the child due to his drug use (see Matter of Beth M. v. Susan T., 81 A.D.3d 1396, 1397, 917 N.Y.S.2d 466; Matter of Pamela S.S. v. Charles E., 280 A.D.2d 999, 1000, 720 N.Y.S.2d 669). At the time of the hearing, the father had custody of a teenage son from another relationship, and he admitted that his son also had substance abuse issues. Despite a court order granting him weekly visitation, the father visited the subject child only three or four times during a nearly two-year period (see Matter of Campbell v. January, 114 A.D.3d 1176, 979 N.Y.S.2d 740). Further, the child has significant mental health issues, and the father “demonstrated that he has no interest in learning about the child’s conditions and needs and how to treat them” (id. at 1177, 979 N.Y.S.2d 740). Contrary to the further contention of the father, we conclude that the record supports Family Court’s determination that the award of custody to petitioner is in the best interests of the child (see Pamela S.S., 280 A.D.2d at 1000, 720 N.Y.S.2d 669). The record reflects, among other things, that petitioner has provided the child with a safe and stable home environment, that the child is doing well in petitioner’s care, and that the child enjoys a close and loving relationship with his half sister, who also resides with petitioner (see Matter of James GG. v. Bamby II., 85 A.D.3d 1227, 1228, 924 N.Y.S.2d 615; Matter of Fynn S., 56 A.D.3d 959, 961–962, 868 N.Y.S.2d 352; Gary G., 248 A.D.2d at 982, 670 N.Y.S.2d 270).
The father’s challenges to the temporary order of removal are not properly before us inasmuch as he ultimately consented to *1351 the child’s placement with petitioner (see Matter of Guck v. Prinzing, 100 A.D.3d 1507, 1508, 954 N.Y.S.2d 366, lv. denied 21 N.Y.3d 851, 2013 WL 1299865; see generally Matter of Violette K. [Sheila E.K.], 96 A.D.3d 1499, 1499, 946 N.Y.S.2d 519; Matter of Fox v. Coleman, 93 A.D.3d 1187, 1187, 939 N.Y.S.2d 786). In any event, even assuming, arguendo, that the court erred in awarding temporary custody of the child to petitioner, we conclude that “ there [would be] no need to reverse on that basis because the court subsequently conducted a full custody hearing[,] … [and t]he record does not support the contention of [the father] that he was prejudiced by the temporary order” (Matter of Heintz v. Heintz, 275 A.D.2d 971, 971–972, 713 N.Y.S.2d 709; see Matter of Vieira v. Huff, 83 A.D.3d 1520, 1521, 922 N.Y.S.2d 684; Matter of Owens v. Garner, 63 A.D.3d 1585, 1585–1586, 881 N.Y.S.2d 251)….”
In another case related to this article, in the case of Jerrina P 126
A.D.3d 980 the Court held, in pertinent part, that:
“….Here, the Family Court properly determined that the nonparent petitioners sustained their burden of demonstrating extraordinary circumstances based upon, inter alia, the mother’s prolonged separation from the subject child and lack of involvement in the child’s life, the mother’s failure to contribute to the child’s financial support, and the strong emotional bond **126 the child had formed with the petitioners (see Matter of Colon v. Delgado, 106 A.D.3d 414, 415, 963 N.Y.S.2d 663; Matter of Robinson v. McNair, 90 A.D.3d at 760, 934 N.Y.S.2d 232; Matter of Holmes v. Glover, 68 A.D.3d 868, 869, 890 N.Y.S.2d 629; Matter of Barcellos v. Warren–Kidd, 57 A.D.3d 984, 985, 870 N.Y.S.2d 443). Moreover, the Family Court’s determination that an award of custody to the petitioners would be in the best interests of the child is supported by a sound and substantial basis in the record (see Matter of Herrera v. Vallejo, 107 A.D.3d at 714, 966 N.Y.S.2d 206; Matter of Flores v. Flores, 91 A.D.3d at 870, 936 N.Y.S.2d 676; Matter of Robinson v. McNair, 90 A.D.3d at 761, 934 N.Y.S.2d 232; Matter of Jumper v. Hemphill, 75 A.D.3d 507, 508, 904 N.Y.S.2d 501; Matter of Barcellos *982 v. Warren–Kidd, 57 A.D.3d at 985, 870 N.Y.S.2d 443)….”.
Of course, the leading case from which all other cases have sprung is the seminal case of Bennett v Jeffreys 40 N.Y.2d 543. There the Court set forth the rules as to nonparent custody from which all Courts are guided. In this Court of Appeals case the biological mother filed a custody petition for her child. The Family Court had originally thrown out the case, allowing the child to live with a nonparent. The Court of Appeals determined that, even after the nonparent had apparently shown extraordinary circumstances, that that was not enough, The Court of Appeals said that the lower courts had erred by not holding a best interests hearing and remanded the case back to the Lower Court for a hearing. Thus, even upon a showing of extraordinary circumstances, it is not a slam dunk for a nonparent.
I hope you found this custody information interesting and helpful.
Your New York Divorce and Child Custody Attorney Lisa Beth Older, Esq.