New York Family Law Blog
In New York, custody disputes between parents and nonparents—such as grandparents—are common but complex. A parent generally has the superior right to custody of their child, but nonparents, like grandparents, may still petition for custody if they can demonstrate that extraordinary circumstances exist. These circumstances might include abandonment, the unfitness of the parent, or other situations where it is in the child’s best interest to be placed with someone other than the biological parent. New York’s Family Court Act and case law, including decisions like Matter of Bennett v. Jeffreys, 40 N.Y.2d 543 (1976) and Matter of Suárez v. Williams, 26 N.Y.3d 440 (2015), allow courts to evaluate the child’s best interests in these situations, even when parents are not unfit.
In the case of a grandmother seeking custody, there are several important factors to consider, including the child’s age, the nature of the parent’s involvement, and the best interests of the child.
Case of Rose
Rose is a 7-year-old girl. For much of her life, she was in the custody of her mother, Dalia, who had primary care of her. The parents of Rose did not live together and were never married. Dalia had her own apartment, where she lived with Rose and her two other children. Each of the three children had different fathers. Rose’s father, Jeremy, lived with his mother. While there was no formal custody agreement or parenting plan in place, Jeremy maintained a regular presence in Rose’s life.
Sadly, Dalia passed away unexpectedly. After her death, her mother, who is the maternal grandmother of Rose and Dalia’s two other children, took it upon herself to move all three children into her home. The grandmother did not consult Jeremy. Jeremy, although initially unaware of the grandmother’s actions, did not contest the decision, assuming that once the situation settled, he would be able to take Rose into his care. The grandmother was eventually granted custody of the two other children without any contest from their fathers.
For approximately 10 months, Jeremy had regular visitation every weekend with Rose. During this time, he maintained a relationship with Rose, and there were no significant issues with the visitation. However, after 10 months, the grandmother filed a petition for custody of Rose, which Jeremy opposed. His argument was that the grandmother lacked standing to seek custody and that the court did not have the authority to conduct a best interest analysis in this case.
Issues Before the Court
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Whether the grandmother has the legal standing to seek custody.
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Whether the court has the authority to conduct a best interest analysis in a case where the child’s biological parent is not unfit and has been involved in the child’s life.
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Whether Jeremy’s role as a parent who was never the primary caregiver, but only maintained visitation with the child, constitutes a prolonged absence that amounts to an extraordinary circumstance justifying the grandmother’s standing to seek custody.
Understanding the Legal Standards
The father’s argument rests on the premise that, because he has consistently had visitation with the child and has not been unfit, the grandmother does not have the legal right to pursue custody. He further argues that the court cannot conduct a best interest analysis without first establishing extraordinary circumstances that justify questioning his position as the biological parent to have custody of his child.
Under New York law, parents have superior rights to custody of their children. The general principle is that a parent is presumed to be the most suitable caregiver unless there is clear evidence to the contrary. However, in situations where a grandparent or other nonparent seeks custody, under certain circumstances, the courts can still consider whether it is in the child’s best interests to be placed in their care.
Extraordinary circumstances must exist for a grandparent to have standing to file for custody. These circumstances may include the unfitness of the parent, abandonment, or situations where a long period of separation between the child and the parent has occurred, potentially resulting in a significant emotional bond between the child and the grandparent. In Matter of Bennett v. Jeffreys, 40 N.Y.2d 543 (1976), the court established that a prolonged separation from a parent—while not necessarily involving abandonment or unfitness—can be considered an extraordinary circumstance.
In this case, the father was involved in the child’s life, but he was never the primary caregiver. Prior to Dalia’s death, Rose had lived with her mother, and Jeremy had visitation rights. After Dalia’s passing, the grandmother became the child’s primary caregiver. The courts will need to consider whether this period of living primarily with the grandmother (about 10 months) constitutes an extraordinary circumstance justifying the grandmother’s standing to seek custody.
In addition, the court will apply the best interest standard, which is the key framework for all custody determinations. Even when a parent is involved in a child’s life, the court is required to assess whether the child’s well-being is best served by continuing to live with the grandparent, who has already provided stability and emotional support.
What Constitutes Prolonged Absence?
The key issue in this case is whether Jeremy’s role as a parent who was never the primary caregiver but only maintained visitation with Rose constitutes a prolonged absence, which might justify the grandmother’s standing to seek custody. While the courts have not established a clear, hard-and-fast rule for what constitutes a “prolonged” absence, there are important precedents to guide the analysis.
In Matter of Bennett v. Jeffreys, 40 N.Y.2d 543 (1976), the separation between the child and the mother lasted seven years, which the court considered to be significant enough to impact the custody decision. Similarly, in Matter of Benitez v. Llano, 39 N.Y.2d 758 (1976), the child had been separated from the mother for an even longer period. In both cases, the courts recognized that an extended absence, even without allegations of abandonment or unfitness, can create extraordinary circumstances that justify a nonparent (such as a grandparent) seeking custody.
In Rose’s case, the Rose has lived with her grandmother for 10 months, but lived away from her father in the primary care of her mother prior to that. Similar to the circumstances in both Bennett or Benitez, the parent had not been the primary caregiver to the child for most if not all of the chid’s life. When a parent seeking custody has no been the primary caregiver or custodial parents and another more present person also seeks custody, courts have viewed the lack of primary caregiving or consistent caregiving as amounting to being absent– or at least not entirely present.
This leads to the issue of defining what absent means. Does it mean simply that the child lived with someone else, but the parent still maintained contact? Or does it refer to the situation where the parent had very little to no contact with the child during that time? While courts have varied in their interpretation, the general consensus is that prolonged absence refers to significant time away with a primary caregiver, during which the child’s emotional connection and stability might be impacted.
In Rose’s case, while Jeremy maintained regular visitation with the child, it is important to note that the child was in the primary care of her grandmother. Absence, in this context, refers to the fact that the child was living with her mother, then her grandmother, and Jeremy did not have a formal custody agreement or the child living with him. The lack of primary custody and the primary caregiving role played by the grandmother can be viewed as an absence from the father’s home, even though Jeremy had visitation.
What the Court Is Likely to Rule and Why
Given the facts, the court is likely to rule in favor of allowing the grandmother to continue seeking custody while also conducting a best interest analysis.
First, the grandmother has standing to seek custody. While the father is not unfit, his role as a non-primary caregiver can be seen as an extraordinary circumstance. The child has lived with the grandmother for a significant portion of her young life, forming a deep emotional bond with her. The Bennett case established that extended separation from a parent, even without unfitness or neglect, can be grounds for third-party custody.
The court will then proceed with a best interest analysis, which is likely to favor maintaining the current living arrangement. The child has been living with her grandmother in a stable, nurturing environment. In addition, Rose has lived with her siblings her entire life. If she is removed from the custody of her grandmother, she will be taking away from her siblings, damaging the bond she has developed with them.
The father’s involvement is not in question, and the court may consider the fact that he has not made any significant effort to contest the arrangement until now. The child’s emotional security, continuity in her relationships with her grandmother, and the stability she has experienced will be crucial factors in determining the outcome.
Given the child’s age, the bond with her grandmother, the presences of siblings, and the stability the grandmother has provided, the court will likely rule that it is in the best interest of the child to remain in the grandmother’s custody. The fact that the father has not pursued custody more vigorously may also influence the court’s decision, as it demonstrates a level of complacency in the father’s involvement.
Conclusion
Child custody cases can be emotionally and legally complex, especially when nonparents, like grandparents, are involved. If you are experiencing a custody dispute, whether it involves a grandparent, a parent, or any other legal guardian, seeking the guidance of an experienced New York child custody lawyer is critical to ensure that your rights are protected and that the best interests of the child are considered throughout the legal process.
At Stephen Bilkis & Associates, we understand how challenging child custody disputes can be. Our dedicated team of family law attorneys has years of experience handling complex custody cases. We are committed to providing personalized legal solutions tailored to your unique circumstances. If you are facing a custody issue, whether as a parent, grandparent, or other concerned party, contact us today to schedule a consultation. Let us help you protect your family and ensure that your child’s future is secure.