FAMILY COURT SHOULD NOT HAVE AWARDED CUSTODY OF THE CHILDREN TO A NONPARENT WITHOUT FIRST MAKING A FINDING WHETHER EXTRAORDINARY CIRCUMSTANCES EXISTED; THE ISSUE WAS NOT PRESERVED, APPEAL HEARD IN THE INTEREST OF JUSTICE (FOURTH DEPT).

The Fourth Department, reversing Family Court, determined Family Court did not make the required initial finding of extraordinary circumstances before awarding custody of the children to a nonparent. Although the issue was not preserved, it was heard in the interest of justice:

” [A]s 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 because of surrender, abandonment, persisting neglect, unfitness or other like extraordinary circumstances . . . The nonparent has the burden of proving that extraordinary circumstances exist, and until such circumstances are shown, the court does not reach the issue of the best interests of the child’ ” … . That rule ” applies even if there is an existing order of custody concerning that child unless there is a prior determination that extraordinary circumstances exist’ ” … . A prior consent order does not by itself constitute a judicial finding or an admission of extraordinary circumstances … . There is no indication in the record that the court previously made a determination of extraordinary circumstances … . Matter of Byler v Byler, 2020 NY Slip Op 04025, Fourth Dept 7-17-20