GRANDMOTHER DID NOT DEMONSTRATE EXTRAORDINARY CIRCUMSTANCES JUSTIFYING AWARD OF CUSTODY OF GRANDCHILD TO HER, ANALYTICAL PRINCIPLES EXPLAINED.
The Third Department determined grandmother did not meet her burden of demonstrating extraordinary circumstances justifying the award of custody of the child to her. Family Court’s award of joint custody to mother and father was affirmed. Mother had relinquished custody to grandmother as an emergency measure (due to domestic abuse) but had continuously worked to regain custody. The court explained the relevant analytical principles:
It is well settled that, in the absence of extraordinary circumstances such as surrender, abandonment, persistent neglect, unfitness or an extended period of custody disruption, a parent has a claim of custody to his or her child superior to all others … . Here, since no finding of extraordinary circumstances had previously been made, the grandmother bore “the heavy burden of first establishing the existence of extraordinary circumstances to overcome the . . . parents’ superior right of custody” … . Only upon such a showing would Family Court proceed to address the issue of the child’s best interests … . Relevant here, “a prolonged separation of the . . . parent and the child for at least  continuous months during which the parent voluntarily relinquished care and control of the child and the child resided in the household of [a] grandparent” may constitute a disruption of custody sufficient to demonstrate extraordinary circumstances (Domestic Relations Law § 72  [b]…). “An order placing a child in a nonparent’s custody upon a parent’s consent is neither a judicial finding nor an admission of extraordinary circumstances” … . Moreover, if the parent spends the period of separation trying to regain custody of his or her child, that period would not necessarily support a finding of extraordinary circumstances … . Matter of Elizabeth SS. v Gracealee SS., 2016 NY Slip Op 00068, 3rd Dept 1-7-16
FAMILY LAW (GRANDMOTHER DID NOT DEMONSTRATE EXTRAORDINARY CIRCUMSTANCES JUSTIFYING CUSTODY OF GRANDCHILD)/CUSTODY (GRANDMOTHER DID NOT DEMONSTRATE EXTRAORDINARY CIRCUMSTANCES JUSTIFYING CUSTODY OF GRANDCHILD)