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. Continue reading