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Grandparents, custody and support: New frontiers for the extended family

In an era of extended families, children often reside with their grandparents, a seemingly safe environment for a child.

But New York still sets a high standard for anyone to have custody of another’s children — “extraordinary circumstances.” Robert G. v. Peter I., 43 AD3d 1162 (2d Dept 2007). While that hurdle may seem almost insurmountable, grandparents have an easier path, courtesy of statute.

Richard A. Dollinger

Richard A. Dollinger

Under Section 72 of the Domestic Relations Law, grandparents may make the requisite showing by establishing that there has been an “extended disruption of [parental] custody, which includes, but is not limited to, a prolonged separation of the . . . parent and the children for at least 24 continuous months during which the parent voluntarily relinquished care and control of the child and the child resided in the household of the grandparents. NY DRL §72(2)(b). This tripartite test, articulated by the Court of Appeals in Matter of Suarez v Williams, 26 N.Y.3d 440, 448 (2016), means that if a grandparent can establish an extended disruption of custody, then a court may resolve the custody issue based on the “best interests” of the child. Id.

Importantly, none of the statutory criteria are absolutes: the Court of Appeals in Suarez v. Williams held that a grandparent may establish “voluntarily relinquished care and control” even during a period of less than 24 months under a “totality of circumstances” analysis, including the “quality and quantity of contact between the parent and children; the amount of time that the child has lived with the grandparents; the quality of the relationship between the child and the grandparents and the length of time that the parent allowed the separation to continue before attempting to assume the primary parental role.” Matter of Donna SS. v Amy TT., 149 A.D.3d 1211 (3d Dept 2017). The “key” inquiry in determining whether there has been a voluntary relinquishment of care and control is “whether the parent makes important decisions affecting the child’s life, as opposed to merely providing routine care on visits.” Id at 1214, quoting Suarez v. Williams, 26 NY 3d at 451.

Joseph Celotto

Joseph Celotto

Against this backdrop, grandparents, who assume temporary residence and custody of a child, often square off against their own children — or sons or daughters-in-law — when permanent custody of a child is at stake. As a practical matter, grandparents may see any temporary order — or even an extended period of residence by consent of the natural parents — as a green light for a permanent order.

The New York courts have not permitted this easy transition — seemingly justified in the eyes of benevolent grandparents — and, instead, have rigorously required demonstration of extraordinary circumstances when grandparents have had shared or temporary custody — even with the consent of the natural parents — and are seeking to obtain sole custody. In Robert G. v. Peter I., 43 AD3d 1162 (2d Dept 2007), for example, grandparents, who shared custody of a grandchild with their son, sought to obtain sole custody. The Family Court dispensed with any finding of extraordinary circumstances and, instead reached the best interests test in awarding the grandparents custody.

The appeals court rejected that approach, insisting that the grandparents, even with a track record of child care and custody, still needed to meet the extraordinary circumstances test. However, as often occurs, the appeals court refused to overturn the lower court conclusion. It peeled back the proof to find proof of such circumstances: the father had rarely visited the children and never paid any support. These factors sufficed to justify the extraordinary circumstances finding and support an award of sole custody to the grandparents.

A grandparent may also establish “relinquishment of care and control” with proof that a parent failed to complete mental health programs. Matter of Christy T. v Diana T., 2017 N.Y. App. Div. LEXIS 8956 (3d Dept 2017).  The lack of a “realistic plan for supporting or housing the children” or having “repeatedly moved with the children and placed them in different schools,” combined with evidence of an inability to control her temper defeated a mother’s request to deny a grandparent placement of a child. Matter of Durgala v Batrony, 154 A.D.3d 1115, 1118 (3d Dept 2017).  A lengthy incarceration is “alone enough” to justify an award of custody to a grandparent. Matter of Sharon B. v Tiffany P., 143 A.D.3d 573 (1st Dept 2016)(28-month incarceration for selling drugs — during which time the child resided in petitioner’s home — is alone enough to constitute extraordinary circumstances). A history of “significant domestic violence” supported the same conclusion. Matter of Kathy C. v Alonzo E., 2018 N.Y. App. Div. LEXIS 238 (1st Dept 2018).

The lack of a natural parent’s viable means of support qualifies as well. In Matter of Lewis v. Speaker, 143 AD3d 822 (2d Dept 2016), the court again confronted a lower court award of custody without the extraordinary circumstances finding. The court, reviewing the record, noted that the grandparent cared for the child for a long time, including while the mother was incarcerated, the mother failed to prove that she had completed addiction remediation courses and she had no vehicle to transport the child and no employment.

Significantly, the absent parent’s payment of child support — or any financial support — may be weighed when considering whether a parent has relinquished “care and control” of a child.  Wright v. Wright, 81 AD 3d 740 (2d Dept 2011) The lack of financial support led to the conclusion that the parent had voluntarily relinquished care and control of the child. In Matter of Gunther v. Brown, 149 Ad 3d 889 (2d Dept 2017), the child had lived for eight years without her mother without any financial support and the Court let the child remain with her grandparent. Similarly, in William O. v. Wanda A., 151 AD 3d 1189 (3d Dept 2017), the court considered a number of factors, including the failure to pay any child support for almost two years, in rejecting a father’s custody petition. See also Robert G. v. Peter I., 43 AD3d 1162 (2d Dept 2007).

In contrast, evidence that a natural parent provides monetary support to the temporary custodian is some proof that the natural parent has not relinquished care and control of the child. Matter of Brown v Comer, 136 A.D.3d 1173 (3d Dept 2016).

In sum, the lack of parental financial support for an extended time can provide proof of “extraordinary circumstances,” apparently even if a grandparent has never sought financial support or a child support order.

As a final note to practitioners in grandparents cases, most courts, even if denying a natural parent custody rights, still impose a child support obligation on natural parents. In Robert G. v. Peter I., 43 AD3d 1162 (2d Dept 2007), the Court after rejecting the father’s custodial rights, imposed a child support obligation, consistent with the Child Support Standards Act, and required the father to pay unreimbursed medical expenses to the grandparents. See also Modica v. Thompson, 300 AD2d 662 (2d Dept 2002)(Child support arrears awarded to grandmother.).

Grandparents, seeking to provide a better place for their grandchildren, should consider seeking financial support from both parents, as a natural parent’s support obligations continue unabated.

The Hon. Richard A. Dollinger is a member of the New York Court of Claims, an acting Supreme Court Justice and the supervising judge in the Matrimonial Part in the 7th Judicial District. Joseph Celotto is a third-year student at Nazareth College and participates in the three-and-three program with Syracuse University College of Lawl.