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THE CUSTODY/GUARDIANSHIP HEARING TOOK SEVEN YEARS AND THE CHILDREN RESIDED WITH GRANDMOTHER AND UNCLE DURING THAT TIME; THE EXTENDED DISRUPTION OF CUSTODY CAUSED BY THE PROTRACTED COURT PROCEEDINGS DID NOT CONSTITUTE “EXTRAORDINARY CIRCUMSTANCES” WARRANTING AN AWARD OF CUSTODY TO GRANDMOTHER AND UNCLE (SECOND DEPT). ​

The Second Department, reversing Family Court, noted that the six or seven years during which the children resided with grandmother and uncle did not constitute “extraordinary circumstances” warranting granting grandmother and uncle, as opposed to mother, custody. Mother was seeking custody the entire time. The hearing started in 2014 and didn’t conclude until 2021:

… [T]he record does not support the Family Court’s determination that extraordinary circumstances existed so as to confer standing on the maternal grandmother and the maternal uncle to seek guardianship and custody of Blessin F. and Frank T., Jr. The evidence failed to establish that the mother voluntarily relinquished care and control of Blessin F. and Frank T., Jr., for an extended period of time … . Rather, the record evidences that the mother’s intention was for Blessin F. and Frank T., Jr., to reside with the maternal grandmother and the maternal uncle only temporarily during her brief period of incarceration so as to prevent them from being placed in foster care, and that the children would be returned to the mother’s care and custody as soon as she was released. The hearing testimony demonstrates that from the time the mother was released from her brief period of incarceration in November 2012, she has continued to attempt to regain custody of Blessin F. and Frank T., Jr., she immediately went to Brooklyn when she was released, she made a motion to vacate the temporary orders of guardianship and custody, and she filed a petition, inter alia, for custody of Blessin F. and Frank T., Jr. Moreover, during the proceedings, the mother continued to have supervised and unsupervised parental access with Blessin F. and Frank T., Jr., as permitted by the court, in Brooklyn, although she was still residing in Georgia with her other young children. Additionally, the prolonged separation between the mother and Blessin F. and Frank T., Jr., occurred during the mother’s attempts to regain custody during these protracted proceedings, and, thus, the extended disruption of custody does not amount to an extraordinary circumstance … . When the maternal grandmother and the maternal uncle first filed petitions for guardianship and custody between October 2012 and February 2013, Blessin F. and Frank T., Jr., had only been residing with them for, at most, a few months; however, the hearing, which commenced in May 2014, did not conclude until March 2021, almost seven years later. “‘Indeed, the courts may not deny the natural parent’s persistent demands for custody simply because it took so long'” … . Matter of Teofilo R.F. v Tanairi R.F., 2024 NY Slip Op 02814, Second Dept 5-22-24

Practice Point: Although a prolonged disruption of custody can constitute “extraordinary circumstances” warranting awarding custody to a non-parent, that is not the case where, as here, the disruption was the result of protracted court proceedings (seven years).

 

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THE CUSTODY-RELATED PRINCIPALS UNDERLYING MICHAEL B, 80 NY2D 299, APPLY TO THIS... FAILURE TO PROPERLY ASSESS A PATIENT’S RISK OF FALLING AND NEED FOR SUPERVISION...