Mother’s Prior Consent to Placement with Sister Did Not Preclude Mother’s Petition for Custody​

The Third Department reversed Family Court’s dismissal of the biological mother’s petition for custody of a child who had been placed with her sister with the biological mother’s consent.  The Third Department determined the mother’s prior consent to custody did not preclude her petition and the respondent, as a nonparent, bore the responsibility to demonstrate extraordinary circumstances warranting her custody of the child.  The Third Department noted:

…[W]hile “no parent has an absolute right to custody of a child . . . it is settled law that, as between a biological parent . . . and a nonbiological parent . . ., the parent has a superior right that cannot  be  denied  unless the nonparent  can establish that the parent has relinquished that right because of ‘surrender, abandonment,  persisting neglect, unfitness or other like extraordinary circumstances'” … .  In the Matter of Evelyn C …, 514179, 3rd Dept, 5-30-13