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Custody Properly Awarded to Non-Parents—Criteria Explained

The Second Department affirmed Family Court’s award of custody to non-parents, explaining the relevant criteria:

In a custody proceeding between a parent and a nonparent, the parent has a superior right to custody that cannot be denied unless the nonparent establishes that the parent has relinquished that right due to surrender, abandonment, persistent neglect, unfitness, or other like extraordinary circumstances … . The burden is on the nonparent to prove the existence of extraordinary circumstances … . Where extraordinary circumstances are found to exist, the court must then consider the best interests of the child in awarding custody … .

Here, the Family Court properly determined that the nonparent petitioners, Yasmin Culberson and Walter Culberson, sustained their burden of demonstrating extraordinary circumstances based upon, inter alia, the mother’s prolonged separation from the subject child and lack of significant involvement in the child’s life for a period of time, the mother’s failure to contribute to the child’s financial support, and the strong emotional bond between the child and the nonparent petitioners … . Moreover, the Family Court’s determination that an award of custody to the nonparent petitioners would be in the best interests of the child is supported by a sound and substantial basis in the record … . Matter of Culberson v Fisher, 2015 NY Slip Op 06144, 2nd Dept 7-15-15

The Third Department determined grandmother demonstrated extraordinary circumstance justifying the award of custody to her with visiting rights for the parents. The court explained the relevant analytical criteria:

“It is well settled that a parent has a claim of custody of his or her child, superior to that of all others, in the absence of surrender, abandonment, persistent neglect, unfitness, disruption of custody over an extended period of time or other extraordinary circumstances” … . “The burden of proving such extraordinary circumstances rests with the nonparent seeking custody and, if established, the controlling consideration in determining custody is the best interests of the child” … . Proof regarding extraordinary circumstances may include, among other things, that “the parent has neglected ‘to maintain substantial, repeated and continuous contact with’ the child[] or make plans for [her] future” …. . Matter of Yandon v Boisvert, 2015 NY Slip Op 06177, 3rd Dept 7-16-15

 

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