When Can New York Grandparents Request Child Custody?

child-and-dog-1562311-e1451580463239In Suarez v. Williams, the New York Court of Appeals, the highest court in New York state, very recently considered a child custody dispute between a child’s mother and paternal grandparents. The child in question had lived with his paternal grandparents between the ages of 10 days old and nearly 10 years old. The father had visitation but lived out of state. The child’s mother lived near the paternal grandparents, eventually in a trailer they bought and put in a trailer park across the street from them.

When the child was four, his parents received an order awarding joint legal custody but giving primary physical custody to the mother. However, the child continued to live with his grandparents in a nearby county. The mother then had less contact with her child for two years, until the grandparents again moved her closer to their home. They talked to her about the child daily, and she saw the child on overnight visits and vacations.

In 2010, the mother made plans to live with a boyfriend. Two years later, the father tried to get custody and wanted to terminate child support. She wouldn’t return the child to the grandparents, using the 2006 order that gave her primary physical custody. She told the grandparents that they’d kept the child for years, and it was her turn and they couldn’t see him.

The grandparents then sought physical custody of the child. The Family Court determined that the mother wasn’t credible, and that because there had been a long disruption of custody between mother and child, during which the mother had voluntarily given up control of him to the grandparents, there were extraordinary circumstances justifying giving joint custody to the grandparents and father with primary physical custody to the grandparents and visitation to the parents.

An appellate court reversed, finding that the grandparents had failed to demonstrate extraordinary circumstances, since the mother was present in the child’s life. It found the grandparents couldn’t seek custody, and their petition was dismissed. The grandparents appealed.

The appellate court explained that a nonparent can request custody against a parent. There is a two-prong test to determine whether custody by a nonparent is appropriate as against a parent. The nonparents needs to prove:  (1) there are extraordinary circumstances like surrender, unfitness, extended disruption of custody, or abandonment; and (2) the child’s best interests are to live with the nonparents.

Furthermore, Domestic Relations Law § 72 (2) specifically provides that if a grandparent can show extraordinary circumstances, the grandparent can ask for custody, and the court has authority to make rulings based on the child’s best interests, including custody rights for the grandparent. To show an extended disruption of custody, grandparents must establish:  (1) there was a 24-month separation of parent and child, (2) the parent voluntarily relinquished care and control of the child during that time, and (3) the child lived with the grandparents. In this case, the court pointed out that the child mainly lived with his grandparents for nearly 10 years.

The mother argued that the prolonged separation had to be complete in order to meet the requirements of the Domestic Relations Law. She argued there was no prolonged separation because she was in regular contact with the child, and the grandparents acted with her permission when making decisions about him. The court disagreed, explaining that a total lack of contact for 24 months was not a statutory element. Instead, the court would consider the totality of the circumstances. Even if a parent had visitation with the child, the issue was whether the grandparent was acting as a parent with primary physical custody during the 24 months.

The mother admitted she’d signed three documents that allowed the grandparents to make educational and medical decisions, but she claimed that she kept ultimate control. The court found that the mother had freely signed over nearly all decision-making rights for an indefinite period. The mother never expressly revoked her written permission. The court held that the grandparents had shown extraordinary circumstances that gave them standing to seek legal custody, but the appellate division needed to consider whether it was in the child’s best interests to stay in the grandparents’ primary physical custody.

If you are considering using mediation for your New York divorce, or need guidance on child custody and visitation matters, contact the Law and Mediation Office of Darren M. Shapiro at 516-333-6555 or via our online form. Our principal Darren Shapiro is an experienced, compassionate family lawyer and mediator.

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