Luther v. Rate, 226 A.D.2d 803 (N.Y. App. Div. 1996). · Go Syfert
Luther v. Rate, 226 A.D.2d 803 (N.Y. App. Div. 1996). Cases Citing This Book View Copy Cite
30 citation events (25 in the last 25 years) across 7 distinct courts.
Treatment trajectory · 1997 → 2026 · click a year to view as-of
1997 2011 2026
Top citers, strongest first. 9 distinct citers. How cited ↗
discussed Cited as authority (rule) Matter of Cade v. Roberts
N.Y. App. Div. · 2016 · confidence medium
Although an individual who is unrelated to a child has no statutory right to seek custody (see Matter of Luther v Rate, 226 AD2d 803, 804 [1996]), a nonrelative may nevertheless be afforded standing to seek custody upon a showing of extraordinary factual circumstances (see Matter of Goodale v Nash, 36 AD3d 703 [2007]; Matter of Anonymous v Olson, 112 AD2d 299, 300 [1985]; cf. Matter of Bennett v Jeffreys, 40 NY2d 543, 545 [1976]).
discussed Cited as authority (rule) Pettaway v. Savage
N.Y. App. Div. · 2011 · confidence medium
The issue of standing was not addressed in Family Court or upon appeal and was thus waived (see Matter of Renee XX. v John ZZ., 51 AD3d 1090, 1092 [2008]); common-law standing was conferred in light of the determination (see Matter of Ratliff v Glanda, 263 AD2d 816, 817 [1999]; Matter of Luther v Rate, 226 AD2d 803, 804 [1996]).
discussed Cited as authority (rule) Thomas X. v. Broome County Department of Social Services
N.Y. App. Div. · 2011 · confidence medium
Inasmuch as petitioner has no biological relationship to the children, his standing to seek custody is determined under the common-law standard requiring the establishment of extraordinary factual circumstances (see Matter of Bennett v Jeffreys, 40 NY2d 543, 548 [1976]; Matter of Luther v Rate, 226 AD2d 803, 804 [1996]; see also Family Ct Act § 651 [b]).
discussed Cited as authority (rule) Goodale v. Nash
N.Y. App. Div. · 2007 · confidence medium
Even assuming that, as the petitioners contend, Donna Goodale is related by blood to the subject children, the petitioners failed to allege the existence of sufficient extraordinary factual circumstances arising since November 25, 2003, when the Family Court awarded custody to the respondents Mildred Nash and Danny Nash, that would warrant a hearing on the issue of whether the petitioners, as nonparents, had standing to modify the custody award of the children to the paternal grandparents (see Matter of Luther v Rate, 226 AD2d 803, 804 [1996]; cf. Matter of Anonymous v Olson, 112 AD2d 299, 300…
discussed Cited "see" Edward WW. v. Diana XX.
N.Y. App. Div. · 2010 · signal: see · confidence high
A motion asserting equitable estoppel may be granted on the papers, without a hearing, if Family Court “possessed] sufficient information to render an informed decision consistent with the child’s best interests” (Matter of Razo v Leyva, 3 AD3d 571, 571 [2004]; see Matter of Glenn T v Donna U, 226 AD2d 803 [1996]; see also Matter of Mobley v Ishmael, 285 AD2d 648, 648 [2001]).
cited Cited "see" Matter of Department of Social Servs. v. D.V.
N.Y. Fam. Ct., Nassau Cty. · 2007 · signal: see · confidence high
See Mobley v. Ishmael, 285 AD2d 648 (2nd Dept. 2001), Glenn T. v. Donna U. , 226 AD2d 803 (3rd Dept. 1996).
discussed Cited "see" Kristen D. v. Stephen D.
N.Y. App. Div. · 2001 · signal: see · confidence high
Further, because a child’s best interest is of paramount concern in proceedings to establish paternity (see, Matter of James BB. v Debora AA., supra, at 853-854; Matter of Ettore I. v Angela D., 127 AD2d 6, 14 ) and recognizing “that the inevitable effect of destroying the child’s image of her family would be catastrophic and [fraught] with lasting trauma” (Matter of Ettore I. v Angela D., supra, at 15), the “courts are more inclined to impose equitable estoppel to protect the status of a child in an already recognized and operative parent-child relationship” (Matter of Lorie F. v …
discussed Cited "see" Peter BB. v. Robin CC.
N.Y. App. Div. · 1998 · signal: see · confidence high
Consequently, the “courts are more inclined to impose equitable estoppel to protect the status of a child in an already recognized and operative parent-child relationship” (Matter of Lorie F. v Raymond F., supra, at 660; see, Matter of Glenn T. v Donna U., 226 AD2d 803 ).
discussed Cited "see, e.g." Tony M. v. Diane S.
N.Y. App. Div. · 1997 · signal: see also · confidence low
Regardless of which forum, Family Court or Supreme Court, was the more appropriate one for this proceeding, it is clear from the record that the petition was properly dismissed (see, David L. v Cindy Pearl L., 208 AD2d 502 ; see also, Matter of Glenn T. v Donna U., 226 AD2d 803 ; Matter of James BB. v Debora AA., 202 AD2d 852 ).
Retrieving the full opinion text from the archive…
In the Matter of Jane F. Luther
v.
Diane M. Rate
Appellate Division of the Supreme Court of the State of New York.
Apr 4, 1996.
226 A.D.2d 803
Cardona.
Cited by 6 opinions  |  Published
Cardona, P. J.

Appeal from an order of the Family Court of Schenectady County (Reilly, Jr., J.), entered March 15, 1995, which, in a proceeding pursuant to Family Court Act article 6 and SCPA[*804] article 17, granted respondent Diane M. Rate’s motion to dismiss the petition for lack of standing.

Petitioners commenced this proceeding seeking, inter alia, custody of an infant horn out of wedlock in August 1994. Unfortunately, the child’s mother is deceased, allegedly killed by the child’s purported biological father on September 14, 1994. Before the mother’s death, she and the child lived with petitioner Jane F. Luther and her husband, petitioner Kurt R. Luther. The Luthers apparently cared for the child in the days immediately following the mother’s death. Petitioner James Carolus and Mary Broecker were close friends of the mother. Although none of the petitioners were related to the mother by blood, Jane Luther was the mother’s aunt through a former marriage and had physical custody of the mother when she was a teenager. On September 19, 1994, the Luthers allowed the child’s maternal grandmother, respondent Diane M. Rate (hereinafter respondent), to take the child for visitation. Respondent did not return the child and apparently obtained a temporary order of custody. Petitioners thereafter commenced this proceeding which Family Court dismissed for lack of standing. We affirm.

Although Family Court had jurisdiction over this custody proceeding (see, Family Ct Act § 651 [b]), there is no statutory authority which gives petitioners, as nonparents who were never formally given care of the child, the right to seek custody (cf., Social Services Law § 383 [certain foster parents given right to intervene in custody proceedings]; see generally, Matter of Bessette v Saratoga County Commr. of Social Servs., 209 AD2d 838; Matter of David M. v Lisa M., 207 AD2d 623). The Legislature has simply not chosen to grant such individuals standing to petition for custody. Therefore, we must look to the common law to determine whether these petitioners were entitled to seek custody (see, Matter of Janet S. M. M. v Commissioner of Social Servs., 158 Misc 2d 851; see also, Matter of David M. v Lisa M., supra).

Under the common law, before standing is accorded to non-parents in custody matters, extraordinary factual circumstances must first be found to exist (see, Matter of Anonymous v Olson, 112 AD2d 299). In addition, in all of the cases where a nonparent was granted standing, the child had some tangible and/or meaningful connection with the nonparent (see, e.g., Matter of Janet S. M. M. v Commissioner of Social Servs., supra, at 856 [and cases cited therein]). Here, while the factual circumstances can certainly be deemed extraordinary (see, Matter of Anonymous v Olson, supra), the facts do not reveal enough[*805] of a nexus between the child and petitioners so as to warrant their being granted standing to pursue custody of the child (cf., supra). Neither Carolus nor Broecker have standing because they have no blood, marital, caretaking or social relationship with the child and, in effect, are strangers to her (see, Matter of Janet S. M. M. v Commissioner of Social Servs., supra, at 857). The Luthers did have full caretaking responsibilities for the child immediately after the mother’s death, although for only a few days when the child was not more than five weeks old. Jane Luther’s marital ties were no longer significant. Therefore, we cannot say that Family Court erred, under the circumstances of this case, in concluding that the Luthers failed to demonstrate a sufficient nexus with the child to justify a finding of standing. We emphasize that our decision should not be viewed as, in any way, diminishing petitioners’ expressed concerns for the child’s welfare.

Crew III, White, Yesawich Jr. and Spain, JJ., concur. Ordered that the order is affirmed, without costs.