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Grant of Custody to Maternal Grandparents Rather than Parent Reversed

In reversing Family Court’s grant of custody to maternal grandparents, the Second Department wrote:

“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” … . “For a third-party nonparent to gain custody of a child, he or she must first prove that extraordinary circumstances exist such that a parent has relinquished his or her superior right to custody” … . “Where extraordinary circumstances are present, the court must then consider the best interests of the child in awarding custody” … .  * * *

We agree with the Family Court that the petitioners, the maternal grandparents of the subject children, satisfied their burden of demonstrating the existence of “extraordinary circumstances,” necessitating a determination as to the best interests of the children … . However, considering the totality of the circumstances in this case .., we find that the Family Court’s determination awarding … custody … to the maternal grandparents is not supported by a sound and substantial basis in the record. The mother’s testimony indicated that, at the time of the hearing, she had abstained from drug use for more than 2½ years. The mother’s testimony also indicated that there were no recent incidents of domestic violence between her and Tardo [the father of one of the children]. Indeed, the Family Court noted in its order that the mother and Tardo are now “clean and sober,” three years having passed between their last instances of drug use and the date of the order, and that “there have been no reports of aggression.” The Family Court placed undue emphasis on the forensic evaluation, which was completed almost two years prior to the court’s determination. Additionally, while the Family Court did acknowledge the nature of James’s wishes, we conclude that the court failed to adequately consider those preferences … . We further note that the attorney for the children supports the mother’s position on appeal, at least insofar as advocating for the mother to have joint custody of both children. Matter of Noonan v Noonan, 2013 NY Slip Op 05824, 2nd Dept 9-11-13

 

 

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