Nonparent Must Show Extraordinary Circumstances in Face of Custody Petition Even If Nonparent Has Custody Pursuant to Prior Consent Order

In upholding Family Court’s denial of mother’s petition for sole custody, the Second Department determined the paternal grandparents, who were sharing custody under a consent order, met their “extraordinary circumstances” burden.  The Second Department noted that even where there is a prior order granting custody to a nonparent, the nonparent still has the burden of demonstrating “extraordinary circumstances” to continue the arrangement in the face of a petition for custody:

In a custody proceeding between a parent and a nonparent, ” the parent has the superior right to custody that cannot be denied unless the nonparent establishes that the parent has relinquished that right due to surrender, abandonment, persisting neglect, unfitness, or other like extraordinary circumstances'”…. The nonparent has the burden of establishing extraordinary circumstances even where, as here, there is a prior order awarding physical custody of a child to the nonparent that had been issued on the consent of the parties…. Where extraordinary circumstances are present, the court must then consider the best interests of the child in awarding custody….   Matter of DiBenedetto v DiBenedetto, 2013 NY Slip Op 05064, 2nd Dept 7-3-12