Custody and Non-Parents

In New York, non-parents, including grandparents, may obtain custody under limited circumstances. However, non-parents face a significant burden of proof which needs to be surmounted in order to obtain custody. Where a non-parent can show “extraordinary circumstances”, a court may find that they have standing to seek custody. After determining whether a non-parent has standing, the court must still decide whether allowing such a person to have custody is in the best interests of the child, using the standard best interest of the child test, in the same way, that parental custody is determined.

The origins of “extraordinary circumstances” standard are more than 30 years old. In 1976, the New York State Court of Appeals held that when a custody dispute between a parent and a non-parent arises, the parent’s superior right to custody could be disturbed only if extraordinary circumstances are proven and if it can be shown that it is in the child’s best interest for a non-parent to have custody. Bennett v. Jeffreys, 40 N.Y.2d 543 (1976). Typical examples of extraordinary circumstances are when a parent is unfit, where there is persistent neglect of a child by a parent, or when the parent abandons the child.

The Bennett case involved a 15-year-old unwed mother who gave birth to her child while living with her parents. Under pressure from her mother, the girl reluctantly transferred the child to the care of Ms. Jeffreys, a former classmate of her mother. Ms. Jeffreys failed to adopt the child because she couldn’t afford to. When the biological mother was 23, and about to graduate from college, she brought a proceeding in Family Court to obtain custody of her child. But the Family Court dismissed the petition, directing that custody of the child remain with Ms. Jeffreys. The biological mother was awarded visitation rights.

The Appellate Division reversed the decision of the Family Court and directed Ms. Jeffreys to return custody to the biological mother because she had not surrendered nor abandoned the child, and was not unfit. The Court of Appeals subsequently reversed the Appellate Division, holding that where “extraordinary circumstances” exist such as an extended separation of the child from his or her biological parents, the best interests of the child were superior to the custody rights of a biological parent.

Extraordinary circumstances differ from case to case, however, the recent amendment to the Domestic Relations Law §72 gives grandparents extra consideration in that an “extraordinary disruption of custody” of at least 24 months, is described by the statute as an “extraordinary circumstance”.

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