When Can a Grandparent Seek Custody in New York?

In a 2015 case, Matter of Rumpff v. Schorpp, a New York appellate court heard an appeal regarding grandparents’ rights. The petitioner was the father of two children. The respondent in the case was the children’s mother. Soon after the younger child was born, the Department of Social Services started neglect proceedings against both of the parents, claiming that their drug and alcohol abuse had caused them to fail in providing the children with adequate supervision and guardianship. They agreed to have the children live with their maternal grandmother, also a respondent in the appeal.

Later, the grandmother asked for sole custody. The parties stipulated to joint legal custody for the father, mother, and grandmother, with the children physically placed with the grandmother. In 2011, the father sought physical custody of the kids by filing a petition to modify custody.

The order continued the prior custody arrangement by the agreement of all the parties. In 2013, the father again brought a petition to modify, seeking sole custody. The family court granted him sole legal custody and physical placement. The mother was given parenting time, and the grandmother was given visitation. The grandmother, the mother, and the children’s attorney appealed this decision.

The appellate court explained that in New York, a parent has a claim of custody in his or her children that is superior to everyone else’s claim as long as there hasn’t been neglect, unfitness, surrender, abandonment, or another extraordinary set of facts. In this case, there was no prior finding of extraordinary circumstances, so the grandmother had to establish that there were extraordinary circumstances to show she had a claim equal to or superior to the father’s claim. Only if she made that showing could the court look at the children’s best interests.

The appellate court explained that whether extraordinary circumstances exist depends on factors including how long a child lives with a non-parent, the quality of their relationship, and how long a parent permits that custody to continue without taking over the primary parental role. In this case, the record didn’t show the father was unfit. However, the appellate court explained that the long placement with the grandmother should be considered an extended disruption of custody under Domestic Relations Law § 72 [2] [b], which counted as an extraordinary circumstance.

In fact, the older of the two children had lived with the grandmother for long periods even before being put in her grandmother’s care in 2008. She and the younger child lived with the grandmother for five years. The father admitted that the children had a strong bond with their grandmother, since she’d been the primary caretaker. The appellate court explained that since there were extraordinary circumstances, the family court should have looked into the children’s best interests.

The appellate court explained that the analysis had to be guided by principles showing that parenthood was respected, but this did not necessarily mean that the children’s custody would be awarded to the parent. The court has to look at the parties’ ability to give the children a stable home, their relationships with the children, their ability to provide for them and guide them, what the children want, and the parties’ ability to promote a positive relationship between the children and the other party.

The appellate court found that in this case, both the father and the grandmother were capable caretakers and had recognized each other’s importance to the children. The father had completed drug rehabilitation in 2008 and kept his full-time employment for three years as of the 2013 hearing. The grandmother was also able to provide an appropriate home in a smaller apartment. Her daughter, the children’s mother, had enhanced opportunities for contact if the children lived with the grandmother.

The children’s attorney supported the children staying with the grandmother. The grandmother testified that the children didn’t want to live with the father, and this was why she opposed the placement with the father. The father acknowledged that he understood this to be the children’s preference as well, but he thought their view would change with time.

The appellate court sent the case back to the lower court to consider the best interest factors and to develop the record. Meanwhile, the existing order remained temporarily in effect.

If you are dealing with child custody issues in New York, you should consult the Law and Mediation Office of Darren M. Shapiro. Contact him at 516-333-6555 or via our online form. Our principal, Darren Shapiro, is an experienced, compassionate family law attorney and mediator.

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