When A Non-Parent Seeks Custody
In New York the courts will presume that it is in the child’s best interest to be in the custody of his or her natural parent. It is public policy that the court should not interfere with the natural family unit without very good cause.
It is important to realize that even relatives, including grandparents, are considered non-parents, quite simply because they are not the child’s natural parents. The court will not take a child away from a parent and give custody of that child to a non-parent simply because it is believed that the non-parent will do a better job of raising the child.
Instead, a court will only consider taking custody of a child away from a parent if it is shown that the parent is either (a) is unfit; (b) persistently neglected the child; (c) abandoned the child; (d) surrendered custody; or (e) if other “extraordinary circumstances” exist. This means that only if one of these required threshold conditions are found will the court then consider what is in the best interest of the child.
The term “extraordinary circumstances” comes from the case of Bennet v. Jeffreys, a famous and frequently sited case in New York law. In that case a fifteen-year-old mother, due to pressure from her own parents, allowed her daughter to be raised for seven years by a family friend. Then, when the mother tried to regain physical custody of the child, the family friend who had been raising the daughter fought to retain custody. The New York State Supreme Court found that, because seven years had passed and the child had bonded with the family friend during that time, extraordinary circumstances existed warranting an inquiry into what would be in the best interest of the child. At the end of the long dispute, the child ended up saying with Jeffreys, the family friend, with Bennet, the mother, gaining visitation rights.
Many cases since have added to the list of what are sufficiently extraordinary circumstances for the court to undertake a best interest of the child analysis, which could lead to the parent’s loss of custody. In most cases this is found when there is a long and voluntary separation of the parent and child. The key is that the separation must be voluntary by the parent. Generally, unless the parent had sought or was actively seeking custody through the legal system, during the separation, and thus, there was little more the parent could have done, the separation will be considered voluntary.
Grandparent & Sibling Visitation Rights
Although grandparents and siblings are obviously not natural parents and thus, cannot seek custody unless one of the previously mentioned circumstances exists, they may still be able to seek visitation. Under New York law, grandparents may assert visitation rights when one or both of their grandchildren’s natural parents have died or when “circumstances show that conditions exist which equity would see fit to intervene.”
Where both parents are alive, divorce is the most commonly sighted equitable circumstance, relied upon to grant visitation rights to a grandparent. However, a grandparent cannot always seek visitation. To seek visitation, a grandparent must show that he or she either has an established relationship with the grandchild or that an effort was made to establish a relationship, but that effort was thwarted of interfered with by the child’s parents. If the court agrees, that the grandparent or grandparents have good standing to seek visitation rights, then the court will evaluate whether the visitation would be in the best interest of the child.
In 1989 New York extended to siblings the same rights to visitation that exist for grandparents. The statute requires that the sibling be “of half or whole blood,” however it is believed that visitation rights would also extend to siblings by adoption. In cases where the sibling is a minor, the action to seek visitation can be brought by a “proper person” on the sibling’s behalf.
