Grandparent and Other Third Parties' Rights to Visitation and Custody are Alive and Well in New York

Notes and comments by Elliot D. Samuelson, Editor

When the United States Supreme Court decided in Troxel v. Granville,530 U.S. 57 (2000), that a Washington statute that permitted grandparents and other third persons visiting rights was "facially invalid" and unconstitutional, some legal scholars believed that the New York courts would apply the rule to our own statute, Domestic Relations Law §72 and no longer address grandparental visitation or custody issues. However, in a recent case, Hertz v. Hertz, 291 A.D.2d 91, 738 N.Y.S.2d 62 (2nd Dept. 2002) following the Troxel decision, it became clear that the New York statute would pass constitutional muster, and the courts would retain jurisdiction to hear such cases.

Not only have the courts continued to address applications made by grandparents for visitation but in another recent case Charles v. Moreno, ___ A.D.2d (2d Dept., 2002), 741 N.Y.S.2d 255 , the Appellate Division, Second Department, affirmed an award of by the Kings County Family Court of custody of a ten-year old daughter and a twelve-year old son to the paternal grandmother. Although the decision is short, it is pregnant with implications.

Factually, the two children had been in the grandmother's care continuously since 1994, a period of almost eight (8) years. Upon trial, it was demonstrated that the mother exposed the children to excessive corporal punishment, had limited parenting skills, lacked judgment concerning the children's well-being, and her conduct had caused the children to be in serious physical jeopardy. She left the children alone and unsupervised on various occasions and perhaps of significance, suffered from a mental infirmity, diagnosed as suffering from post-traumatic stress disorder coupled with narcissistic and schizotypal personality traits. The Second Department concluded that "the existence of this mental condition combined with the protracted separation of mother from children and the attachment of the children to their grandmother...support the hearing court's finding of extraordinary circumstances." Citing Matter of Bennet v. Jeffreys, 40 N.Y.2d 543, 544, 387 N.Y.S.2d 821, for the proposition that before custody can be awarded to a non-parent, there must be a showing of extraordinary circumstances. The Charlescourt also noted that the children were thriving, happy and well developed in the grandmother's care, which appeared to be one of the controlling factors. Finally, after discussing such criteria, the court concluded that its determination was "...in the best interest of the children...," the last word, and bottom line, in all custody and visitation disputes.

The Second Department, has not hesitated to award custody of children to other non-parents. For example, in Matter of Benjamin B. 234 A.D.2d 457, 651 N.Y.S.2d 571 (2d Dept 1996), a four year old son's custody was awarded to the father's fiancé, because the court found that the "father's drug problems and the mother's "significant psychopathology" constituted "extraordinary circumstances." There, the court noted that the trial court is in the most advantageous position to evaluate the testimony, character and sincerity of the witnesses. In reaffirming the standard of finding extraordinary circumstances before custody could be awarded to a non-parent, the court noted that the appointed forensic psychologist had found that the mother was suffering from a chronic schizoid personality disorder with depressive and impulsive features, and that such condition coupled with the fact that the mother had been separated from the child for a protracted period of time and the child had a strong affiliation for the father's fiancé, supported the trial court's finding of extraordinary circumstances. See also, Emanuel S. v. Joseph E., 78 N.Y.2d 178, 573 N.Y.S.2d 36 (1991), which held that the grandparents must show that they made sufficient effort to establish or maintain a relationship with the grandchildren before making such application.

In another department, the Fourth, a similar result was obtained. In Matter of Pamela S. S. v. Charles E, 280 A.D.2d 999, 720 N.Y.S.2d 669 (4th Dept, 2001) custody was transferred from a father to an aunt and uncle because (1) there was a showing of extraordinary circumstances justifying the court's intervention and (2) the transfer to the non-parent was in the child's best interest. In that case, the court reflected,

"Petitioners had the burden of establishing that respondent relinquished his superior right to parent his son based on extraordinary circumstances, such as 'surrender, abandonment, persisting neglect, unfitness, and unfortunate or involuntary disruption of custody over an extended period of time.'"

Here, the aunt and uncle established the neglect and unfitness of the father who had sole custody of the child. The father had engaged in bizarre and violent behavior with his son and left him unsupervised on numerous occasions. Moreover, the father, as the parents in the other cases reviewed above, had a history of mental illness requiring medication and there was some question as to whether he would be likely to take his medication or submit to treatment for his illness. It was also determined that the father had a history of drug abuse. Once again, the court concluded that the trial court's findings must be given great deference, and affirmed the award of the transfer of custody, noting that the petitioners had met the two prong burden of first establishing extraordinary circumstances and then that the award to them would be in the best interest of the child.

In an earlier case decided in 1990, Matter of Susan M. Hansen v. Post, 167 A.D.2d 702, 563 N.Y.S.2d 279, the appellate court in the Third Department awarded custody to a social worker unrelated to the child where both parents had been found to be unfit and the child had a severe emotional problem that the parents were unwilling and unable to address in an appropriate manner. The court discussed the two prong test of compelling extraordinary circumstances and best interest of the child.

There appears to be no doubt currently, that in an appropriate case, grandparents, as well as other non-parents, may obtain either custody or visitation from parents who are not adequately fulfilling the role of custodial parent to the detriment of a child's best interest. What conduct will constitute extraordinary circumstances, as well as best interest will continue to be made on a case to case basis. Certainly, mental illness, abuse, neglect, drug addiction or abandonment will always be considered by the courts in making these initial determinations, but such grounds are by no means limiting. It will be left to the expertise of counsel to frame a petition to satisfy the rule promulgated by the landmark decision in Bennet v. Jeffreys, supra.

*Elliot Samuelson is the senior partner in the Garden City matrimonial law firm of Samuelson Hause & Samuelson, LLP, and is included in "The Best Lawyers of America" and the "Bar Registry of Preeminent Lawyers in America." He has appeared on both national and regional television and radio programs, including Larry King Live. Mr. Samuelson can be reached at (516) 294-6666 or Samuelson@SamuelsonHause.com.

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