GRANDPARENT CUSTODY

July, 2005, By John Virdone and Jerome A. Wisselman

Recent Amendments Do Not Abrogate Bennett v. Jeffreys Requirements

Part One of a Two-Part Article

On Oct. 8, 2003, Governor Pataki signed into law a bill, #S422A, which amended FCA '651(b) and DRL '72(2)(a) (b) (c), codifying jurisdiction to hear and determine petitions filed by grandparents for custody of their grandchildren. The amendments became effective Jan. 5, 2004.

When the governor signed the legislation into law, it was lauded as an example of his commitment to New York State's children and families. Assemblyman Roger Green said, "In some cases, grandparents are the best viable guardian of a child. I therefore commend Governor Pataki for signing this law into effect on behalf of the many grandparents who work hard to provide a safe, nurturing home for their grandchildren. This is a wonderful day for grandparents and their grandchildren and the great State of New York."

What has the effect been of these amendments on the rights of grandparents who seek custody of their grandchildren? Is it easier for them to gain custody, or are they bound by the same rules that prevailed before the amendments?

Established Law Prior to the Amendments

Before the amendments became law, the seminal case establishing the procedural requirements and standards for third-party custody cases in New York State was Matter of Bennett v. Jeffreys, 40 NY 2d 543 (1976). In Bennett, the Court of Appeals held that a parent has a superior right to custody over a nonparent unless the nonparent meets the burden of proving "extraordinary circumstances." Proving extraordinary circumstances establishes the nonparent's standing to challenge custody.

Specifically, the Bennett court stated:

• "The parent has a 'right' to rear its child, and the child has a 'right' to be reared by the parent. However, there are exceptions created by extraordinary circumstances, illustratively, surrender, abandonment, persisting neglect, unfitness, and unfortunate or involuntary disruption of custody over an extended period of time .... Indeed, and this is key, the rights of the parent and the child are ordinarily compatible, for "the generally accepted view [is] that a child's best interest is that it be raised by its parent unless the parent is disqualified by gross misconduct." Id. at 204.

The Bennett court further reasoned that even where extraordinary circumstances are found, the ensuing best interests determination is not simply to be controlled by who would make a better parent, but requires more. Although the extraordinary circumstances trigger the "best interests of the child" test, this must not mean that parental rights or responsibilities may be relegated to a parity with all the other surrounding circumstances in the analysis of what is best for the child. The child's best interest is not controlled by whether the natural parent or the nonparent would make a "better" parent, or by whether the parent or the nonparent would afford the child a "better" background or superior creature comforts. Nor is the child's best interest controlled by comparing the depth of love and affection between the child and those who vie for its custody. Instead, in ascertaining the child's best interest, the court is guided by principles that reflect a "considered social judgment in this society respecting the family and parenthood" ( Matter of Spence-Chapin Adoption Serv.v. Polk, 29 NY2d 196, 204, supra.). These principles do not, however, dictate that the child's custody be routinely awarded to the natural parent. See Matter of Benitez v. Llano, 39 NY2d 758.

According to Bennett, the trial court must first make a judicial finding of "extraordinary circumstances," which may include but are not limited to surrender, abandonment, unfitness, persistent neglect and unfortunate or involuntary extended disruption of custody. Then, only after the trial court has made a judicial finding of "extraordinary circumstances," is it permitted to inquire into the best interests of the child.

In third-party custody cases since Bennett, the trial courts have adhered to these procedural requirements. See People ex rel Anderson v. Mott, 199 A.D.2d 961, (4th Dept.1993) (When a parent has regularly exercised his visitation rights, showed a sincere interest in his child and faithfully made child support payments, no extraordinary circumstances exist); Matter of Burdghdurf v. Rogers, 233 A.D.2d 713 (3rd Dept. 1996), lv. app. den., 89 N.Y.2d 810, (March 1997) (Extraordinary circumstances do not exist simply because a psychological bond exists between the nonparent and the child); Matter of McGraw v. McGraw, 258 A.D.2d 464 (2nd Dept. 1999) (Extraordinary circumstances do not exist simply where a nonparent claims they may do a "better job" of raising the child); Matter of Commr. of Soc. Serv. of the City of N.Y. O/B/O Tyrique P., 216 A.D.2d 387 (2nd Dept. 1995) (Where the contact between the parent and the child is "sparse," extraordinary circumstances have been found to exist); Matter of Charles C. v. Barbara M., 254 A.D.2d 778 (4th Dept. 1998) (Repeated relinquishment of a father's right to have his child live with him, and his consent to letters of guardianship in favor of the child's maternal grandparents, constituted extraordinary circumstances); Bisignano v. Waltz, 164 A.D.2d 317 (3rd Dept. 1990) (Where a mother left a child in the grandmother's care for 1 year without telling the grandmother of her whereabouts and without planning for the child, extraordinary circumstances were found); Parker v. Tompkins, 273 A.D.2d 890 (4th Dept. 2000) (Prolonged separation by father for 5 years and failure to pay support constituted extraordinary circumstances); Matter of Eger v. Garafalo, 251 A.D.2d 770 (3rd Dept. 1998) (A protracted separation by the father prior to the mother's death, was not sufficient to award custody to the aunt); Campbell v. Brewster, 779 N.Y.S.2d 665 (3rd Dept.2004) (Where a father sought custody of his son soon after the mother's death, and he had visited with his son and paid support, extraordinary circumstances did not exist even though the mother and the grandmother had entered into a consent order of joint custody, and despite the grandmother's claim that removing the child from her home would have psychological impact on the child); and McArdle v. McArdle, 1 A.D. 3rd 822 (3rd Dept. 2003) (Prior consent order between the mother and grandmother granting joint custody to the grandmother did not satisfy the extraordinary circumstances requirement in an action between the maternal grandparent and the father).

In next month's newsletter, we'll look at the changes the amendments made to previous law and at the effect those changes had on the outcome of one case in which a grandmother and the unwed father of the child in question both sought custody.