THE BIOLOGICAL MOTHER OF THE CHILD DIED BEFORE SHE AND PETITIONER WERE TO BE MARRIED; THE BIOLOGICAL FATHER ARGUED PETITIONER DID NOT HAVE STANDING TO SEEK CUSTODY AND FAMILY COURT AGREED; HOWEVER STANDING CAN BE DEMONSTRATED BY EXTRAORDINAY CIRCUMSTANCES WHICH MAY BE PRESENT; MATTER REMITTED FOR A RULING (FIRST DEPT).

The First Department, reversing Family Court, determined standing in a custody matter can be proven by extraordinary circumstances and sent the matter back for a ruling. The child’s mother died unexpectedly before she and petitioner were to be married. The petition was denied for lack of standing. However, standing can be proven by extraordinary circumstance which may be demonstrated here:

As a prerequisite to seeking custody or visitation with a child, a party must establish standing. The party may establish standing (1) as a parent pursuant to Domestic Relations Law § 70; (2) as a sibling for visitation pursuant to Domestic Relations Law § 71; (3) as a grandparent for visitation or custody pursuant to Domestic Relations Law § 72; or (4) by showing extraordinary circumstances pursuant to Matter of Bennett v Jeffreys (40 NY2d 543 [1976]) … . * * *

Family Court erred in dismissing petitioner’s custody and visitation petitions without permitting petitioner the opportunity to present evidence supporting her argument that she had standing based on extraordinary circumstances. Indeed, the Referee stated on the record during the hearing that she agreed with the biological father’s position that petitioner could only present extraordinary circumstances evidence after she established that she had standing. This is an error of law, as extraordinary circumstances is one of several bases for standing to seek custody and visitation.

Extraordinary circumstances may be found where there has been “a judicial finding of surrender, abandonment, unfitness, persistent neglect, unfortunate or involuntary extended disruption of custody, or other equivalent but rare extraordinary circumstance which would drastically affect the welfare of the child” … . Matter of Lashawn K. v Administration for Children’s Servs., 2023 NY Slip Op 05662, First Dept 11-9-23

Practice Point: Standing to bring a custody petition may be demonstrated by extraordinary circumstances. Here the biological mother died unexpectedly before she and petitioner were to be married. The biological father successfully argued petitioner did not have standing. The matter was sent back for Family Court for a ruling on whether petitioner demonstrated standing based upon extraordinary circumstances.