Previously, I have touched upon the rights of grandparents and non-parents in child custody and visitation or parenting time cases against parents in New York. In my years of practice in New York City, the surrounding areas, and as a Long Island Child Custody Lawyer, I have needed to deal with these issues a number of times. The purpose of this article is to further shine a light on the standard that the law outlines that courts should use in deciding these cases.
In order for a parent to be able to prevail against a non-parent to be awarded by a court custody or guardianship of a child, the court must find that extraordinary circumstances exist. This standard was announced by the New York Court of Appeals in the landmark case of Bennet v. Jeffreys, 40 NY2D 543 (1976) which remains the law in New York today. Over time, precedents decided since have helped clarify situations in which these extraordinary circumstances are deemed to exist. The extraordinary circumstances were exemplified as: unfortunate or involuntary disruption of custody over an extended period of time; surrender; abandonment; persisting neglect; unfitness or comparable situations. For a non-parent, such as a grandparent, relative or family friend, to be able to proceed with the custody or guardianship case, a court must first find that these extraordinary circumstances exist. This gives the non-parent what is called “standing” to have the case heard by a court.
If standing by the non-parent is not found to exist in the cases particular circumstances, then the case must be dismissed. If, however the extraordinary circumstances are found to exist, then the court needs to decide whether the best interests of the child are served by awarding custody to the parent or the third party. The Bennett v. Jeffrey’s case was guided by the principle that parents have a fundamental right to raise their own children and children have the right to be raised by their own parents, except in certain circumstances.
Extraordinary circumstances have been found by courts when a parent has a history of domestic violence and child neglect. Likewise lack of involvement in a child’s life has been held to constitute extraordinary circumstances. On the other hand, a strong bond between the child and non-parent alone is not enough to constitute extraordinary circumstances. The fact that a non-parent might do a better job than a parent in raising the child also has been found to not be enough. Abandonment for two years has been found to be enough for extraordinary circumstances. Some cases have held that any abandonment period under two years itself is not enough while extraordinary circumstances were found when a parent left a child in a grandparent’s care for one year and failed to let the grandparent know her whereabouts.
Like most family law issues, it is apparent from a review of the case law that there are not hard and fast rules to be applied in non-parent v. parent child custody cases. Skilled presentations and arguments, by experienced attorneys, are helpful on each side of the case. The trier of fact, whether it is a judge, referee or judicial hearing officer makes the decisions about the custody of children. Although the trial courts are subject to appellate review, the trial courts are given the discretion to weigh the credibility of the witnesses and parties in each particular case. The trial court makes the initial determination which will remain undisturbed unless appealed (even then, more often than not the trial court’s determination gets upheld).
Normally, once a custody order is made giving one parent custody over another parent, a substantial change of circumstances must be shown to exist in order for the court to then look at whether the best interests of the child require the custody order to be modified or remain the same. What is not clear is whether in a modification of custody proceeding a non-parent must continually meet the extraordinary circumstances test every time the case proceeds. There are many cases which seem to answer that question as yes. There is some case law, however, that puts non-parents on equal footing with parents once a prior finding of extraordinary circumstances has been made. Whether to apply the extraordinary circumstances or not in a custody modification case with a non-parent requires some extra scrutiny and analysis due to the differences among cases.
Child custody trials are delicate and particularly complex when dealing with a battle between a parent and non-parent. Please click around this blog and our website for more information about child custody, family law, divorce, mediation, and collaborative law. Feel free to call about your free initial consultation as well. It would be our pleasure to speak with you about your case.