Child custody cases are very legally intricate, not to mention horribly taxing on one’s emotions. Both the attempt to obtain a new child custody arrangement or protect an existing child custody status are fraught with complex court challenges.
If you are facing or considering a child custody case, Gildin and Chapman is here for you. We offer decades of experience to help you navigate this perilous time in your life. We have successfully litigated many hundreds of child custody cases throughout the Greater Metropolitan New York City areas of Manhattan, Brooklyn, Queens, Westchester, Nassau, Suffolk and many other Counties. Call us at (516) 981-4763 now to speak to one of our lawyers.
New York Custody Laws for Non-Parent Relatives
In New York, generally speaking, a parent has a superior right to custody of their child over any other person who is not also a parent of that child. In practical terms, this means that a relative (grandparent, aunt, uncle, sibling, cousin or any other person such as a friend or neighbor) of a child cannot just simply walk into Court and request that they be legally granted custody of that child in place of the child’s parent. Before the Court will even hear the relative’s request, that relative must first show that they have the right to bring the case, which is called ‘standing’. ‘Standing’ can be proved if the relative establishes either one of two criteria: that one of the parents has died or; more commonly, that ‘extraordinary circumstances’ exist that warrant that the case be considered.
Understanding ‘Extraordinary Circumstances’ in New York
Given that the concept of parental rights is extremely strong in New York, being able to proceed with a case that attempts to take child custody away from a parent by proving that ‘extraordinary circumstances’ do, in fact, exist is not an easy task. The lead Court case that established and defined ‘extraordinary circumstances’ in New York was Bennett v. Jeffreys, 387 N.Y.S.2d 821 (Ct of Appls 1976). ‘Extraordinary Circumstances’ will be legally established only where there has been a judicial finding of surrender, abandonment, unfitness, persistent neglect, unfortunate or involuntary extended disruption of custody by the parent.
How Do I Prove That ‘Extraordinary Circumstances’ Exist?
One of the more common of the factors that can be used to prove that ‘extraordinary circumstances’ exist is that of ‘the disruption of custody by the parent’. The Courts in New York have tried to simply define this option to be that a parent has not been in contact with their child for at least twenty-four months, however, like most things in the law, there are vast exceptions to that rule. For instance, in the case of Trina L. v. Michelene M., 211 N.Y.S.3d 38 (1st Dep’t. 2024), the Court ruled that ‘the disruption of custody by the parent’ includes, but is not limited to, a prolonged separation of the respondent parent and the child for at least twenty-four continuous months during which the parent voluntarily relinquished care and control of the child and the child resided in the household of the petitioner grandparent, provided, however, that the court may find that extraordinary circumstances exists should the prolonged separation have lasted for less than twenty-four months.
The ‘extraordinary circumstances’ analysis must often then consider the cumulative effect of all issues present in a given case, including, among others, the length of time the child has lived with the non-parent, the quality of that relationship and the length of time the parent allowed such custody to continue without trying to assume the primary parental role, any neglect or abuse of the child, mental health and substance abuse issues.
The case of Gerow v. Samuel, – NYS3d –, 2024 WL 4314573 (4th Dep’t. 2024), offers a good explanation of these above principles:
‘In determining that extraordinary circumstances exist, Family Court erred in relying on the fact that the child had been in the custody of the grandmother for an extended period of time. The child was placed in the grandmother’s custody only after an order of protection was issued against the mother regarding the child, and the mother thereafter petitioned to regain custody. The court properly further held, however, that the cumulative effect of all issues other than the extended disruption of custody established that extraordinary circumstances exist. The evidence established that the mother was an unfit and neglectful parent based on, inter alia, the mother’s use of excessive corporal punishment; her disregard of court orders requiring supervision of her access and precluding contact between the child and her boyfriend, who murdered the child’s father; her failure to recognize the child’s need for counseling or to facilitate such counseling; her failure to take any interest in the child’s education ; and her conduct in allowing repeated exposure of the child to his father’s murderer and in nurturing that relationship.’
What Does It Mean to Be In the ‘Best Interests’ of a Child?
If and when a relative does successfully establish that they have proper legal ‘standing’ to bring a child custody case against a parent as outlined above, that is not the end of the case. Quite to the contrary, the relative then needs to prove that it is in the child’s ‘best interest’ to be in their custody over the parent.
Effectively, the case then moves into what looks like the traditional child custody case between two parents – again – what arrangement will be ‘best’ for the child.
Under New York Domestic Relations Law § 240 (1) and § 70 and its Family Court Act equivalent, child custody decisions by the Court are based on the ‘best interests’ of the child. See for example the court cases of Narine v. Singh, 216 N.Y.S.3d 38 (2nd Dep’t. 2024); Paul D. v. Margarita O., 210 N.Y.S.3d 404 (1st Dep’t. 2024); Buskey v. Alexis, 209 N.Y.S.3d 451 (2nd Dep’t. 2024); Kim v. Becker, 204 N.Y.S.3d 152 (2nd Dep’t. 2024).
The ‘best interests’ of the child are determined by considering the totality of circumstances of the relationship with their parents or with, as discussed herein, the relative. See for example the court cases of Narine v. Singh, 216 N.Y.S.3d 38 (2nd Dep’t. 2024); Ivan J. v. Felicia V., 211 N.Y.S.3d 388 (1st Dep’t. 2024); Guzman v. Nollah, 206 N.Y.S.3d 352 (2nd Dep’t. 2024).
Factors the Court Considers for the ‘Best Interests of the Child’
There is no assumption of the superiority of either the parent or, as discussed herein, the relative. See DRL § 240 and FCA equivalent; see for example the court cases of Brown v. Simon, 151 NYS3d 71 (2nd Dep’t. 2021); Wright v. Perry, 95 NYS3d 108 (2nd Dep’t. 2019); Brooke S.B. v. Elizabeth A.C.C., 28 N.Y.3d 1 (Ct of Appls 2016); S.L. v. J.R., 27 N.Y.3d 558 (Ct of Appls 2016) ; J.C.D. v. D.W.D, 676 N.Y.S.2d 100 (1st Dep’t. 1998); Alan G. v. Joan G., 482 N.Y.S.2d 272 (1st Dep’t. 1984). Rather, the Court examines various factors, including (1) the original placement of the child, (2) the length of that placement, (3) the child’s desires, (4) the relative fitness of the parent or relative, (5) the quality of the home environment, (6) the parties’ guidance given to the child, (7) the parties’ financial status, (8) their ability to provide for the child’s emotional and intellectual development, and (9) the willingness of the party to assure meaningful contact between the child and the other party. See for example the court cases of Narine v. Singh, 216 N.Y.S.3d 38 (2nd Dep’t. 2024); Akerele v. Garnett, 209 N.Y.S.3d 81 (2nd Dep’t. 2024); Smith v. Colon, 205 N.Y.S.3d 495 (2nd Dep’t. 2024); Guzman v. Nollah, 206 N.Y.S.3d 352 (2nd Dep’t. 2024); Kim v. Becker, 204 N.Y.S.3d 152 (2nd Dep’t. 2024).
In addition to the above general factors of a ‘best interests’ of custody analysis as discussed above, there are many other particular issues that the Court will consider, including, but not limited to, domestic violence, substance abuse, excessive corporal punishment, mental health issues, criminal history, sibling relationships, and the ability to properly handle any special needs of the child.
Contact a New York Custody Lawyer For Your Case
The above discussion is merely a framework for your initial consideration, but as you can now certainly see, child custody cases between a parent and relative are indeed very complex and filed with legal intricacies. If you are facing or considering a child custody case, Gildin and Chapman is here for you.
We offer decades of experience to help you navigate this perilous time in your life. We have successfully litigated hundreds of child custody cases throughout the Greater Metropolitan New York City areas of Manhattan, Brooklyn, Queens, Westchester, Nassau, Suffolk and many other Counties. Call us at (516) 524-5657 now to speak to one of our lawyers.
