extraordinary circumstances analysis in New York

2021It is well settled that a parent's right to custody of his or her child is superior to that of all others absent a showing of "surrender, abandonment, persistent neglect, unfitness, an extended disruption of custody or 'other like extraordinary circumstances'" ( Matter of Donna SS. v Amy TT. , 149 AD3d 1211 , 1212 [2017], quoting Matter of Bennett v Jeffreys , 40 NY2d 543, 544 [1976]). "'The extraordinary circumstances analysis [*2]must consider the cumulative effect of all issues present in a given case, including, among others, the length of time the child has lived with the nonparent, the q

2020"The extraordinary circumstances analysis must consider the cumulative effect of all issues present in a given case, including, among others, the length of time the child[ren] [have] lived with the nonparent, the quality of that relationship and the length of time the parent allowed such custody to continue without trying to assume the primary parental role" ( Matter of Peters v Dugan , 141 AD3d 751, 753 , [2016] [internal quotation marks and citations omitted]; see Matter of Hawkins v O'Dell , 166 AD3d 1438 , 1440 [2018]).

2014As relevant herein, “factors to be considered in an extraordinary circumstances analysis include the length of time the child has lived with the nonparent, the quality of that relationship and the length of time the . . . parent allowed such custody to continue without trying to assume the primary parental role” (Matter of Golden v Golden, 91 AD3d 1042, 1043 [2012] [internal quotation marks and citations omitted]).

2014As relevant herein, “factors to be considered in an extraordinary circumstances analysis include the length of time the child has lived with the nonparent, the quality of that relationship and the length of time the . . . parent allowed such custody to continue without trying to assume the primary parental role” (Matter of Golden v Golden, 91 AD3d 1042, 1043 [2012] [internal quotation marks and citations omitted]).

2023"The extraordinary circumstances analysis must consider the cumulative effect of all issues present in a given case . . . , including, among others, the length of time the child has lived with the nonparent, the quality of that relationship and the length of time the . . . parent allowed such custody to continue without trying to assume the primary parental role" ( Matter of Brown v Comer , 136 AD3d 1173, 1174 [3d Dept 2016] [internal quotation marks omitted]; see Matter of Byler v Byler , 207 AD3d 1072 , 1074 [4th Dept 2022], lv denied 39 NY3d 901 [2022]).

2019"The extraordinary circumstances analysis must consider the cumulative effect of all issues present in a given case, including, among others, the length of time the child has lived with the nonparent, the quality of that relationship and the length of time the parent allowed such custody to continue without trying to assume the primary parental role" ( Matter of Brown v Comer , 136 AD3d at 1174 [internal quotation marks, ellipsis and citations omitted]).

2018Here, as in Katherine D. , we need not remit the matter for a new hearing on extraordinary circumstances "because the record is adequate to enable us to apply the extraordinary circumstances test" (32 AD3d at 1351; see Matter of Vincent A.B. v Karen T. , 30 AD3d 1100 , 1101 [4th Dept 2006], lv denied 7 NY3d 711 [2006]; cf. Matter of Howard v McLoughlin , 64 AD3d 1147, 1148 [4th Dept 2009]).

2014We agree with the father that the court erred in failing to conduct the threshold inquiry whether extraordinary circumstances existed here to warrant the continuation of primary physical residence with the grandparents (see Matter of Howard v McLoughlin, 64 AD3d 1147, 1147 [2009]).

2021It is well settled that a parent's right to custody of his or her child is superior to that of all others absent a showing of "surrender, abandonment, persistent neglect, unfitness, an extended disruption of custody or 'other like extraordinary circumstances'" ( Matter of Donna SS. v Amy TT. , 149 AD3d 1211 , 1212 [2017], quoting Matter of Bennett v Jeffreys , 40 NY2d 543, 544 [1976]). "'The extraordinary circumstances analysis [*2]must consider the cumulative effect of all issues present in a given case, including, among others, the length of time the child has lived with the nonparent, the q

2018In so ordering, Family Court indicated that petitioner "appears to have demonstrated stability and has remained extremely committed to the child" and that the child "is very bonded to [petitioner]" and "thriving in her care." "[I]n light of the fact that an extraordinary circumstances analysis 'must consider the cumulative effect of all issues present in a given case'" ( Matter of Tamika B. v Pamela C. , 151 AD3d 1220, 1221 [2017], quoting Matter of Peters v Dugan , 141 AD3d 751, 753 [2016] [internal quotation marks and citations omitted]; see Matter of Heather U. v Janice V. , 152 AD3d 836, 8

2016“The extraordinary circumstances analysis must consider 'the cumulative effect’ of all issues present in a given case” (Matter of Pettaway v Savage, 87 AD3d 796, 797 [2011], lv denied 18 NY3d 801 [2011], quoting Matter of Melody J. v Clinton County Dept. of Social Servs., 72 AD3d 1359, 1362 [2010], lv denied 15 NY3d 703 [2010]), including, among others, “the length of time the child has lived with the nonparent, the quality of that relationship and the length of time the . . . parent allowed such custody to continue without trying to assume the primary parental role” (Matter of Bevins v Wither

2012Matter of Pettaway v Savage, 87 AD3d 796, 797-798 [2011], lv denied 18 NY3d 801 [2011]; Matter of Lori MM. v Amanda NN., 75 AD3d 774, 775 [2010]; Matter of Bevins v Witherbee, 20 AD3d at 719 ).

2016“The extraordinary circumstances analysis must consider 'the cumulative effect’ of all issues present in a given case” (Matter of Pettaway v Savage, 87 AD3d 796, 797 [2011], lv denied 18 NY3d 801 [2011], quoting Matter of Melody J. v Clinton County Dept. of Social Servs., 72 AD3d 1359, 1362 [2010], lv denied 15 NY3d 703 [2010]), including, among others, “the length of time the child has lived with the nonparent, the quality of that relationship and the length of time the . . . parent allowed such custody to continue without trying to assume the primary parental role” (Matter of Bevins v Wither

2012Additional factors to be considered in an extraordinary circumstances analysis include “ ‘the length of time the child has lived with the nonparent, the quality of that relationship and the length of time the biological parent allowed such custody to continue without trying to assume the primary parental role’ ” (Matter of Tennant v Philpot, 77 AD3d 1086, 1087 [2010], quoting Matter of Bevins v Witherbee, 20 AD3d 718, 719 [2005]; accord Matter of Ferguson v Skelly, 80 AD3d at 905 ).

2026"A nonparent bears the heavy burden of establishing that there are extraordinary circumstances and, thus, that he or she has standing to seek custody of another person's child" ( Matter of Donna SS. v Amy TT. , 149 AD3d 1211 , 1212 [3d Dept 2017] [citations omitted]; see Matter Tamika B. v Pamela C. , 187 AD3d 1332, 1335 [3d Dept 2020]).

2021"The extraordinary circumstances analysis must consider the cumulative effect of all issues present in a given case, including, among others, the length of time the child[ren] ha[ve] lived with the nonparent, the quality of that relationship and the length of time the parent allowed such custody to continue without trying to assume the primary parental role" ( Matter of Tamika B. v Pamela C. , 187 AD3d at 1334-1335 [internal quotation marks, brackets and citations omitted]; see Matter of Michael P. v Joyce Q. , 191 AD3d 1199 , 1200 [2021], lv denied 37 NY3d 902 [2021]; Matter of Melissa MM. v

2022The father first challenges Family Court's finding of extraordinary circumstances. "[F]actors to be considered in an extraordinary circumstances analysis include the length of time the child has lived with the nonparent, the quality of that relationship and the length of time the parent allowed such custody to continue without trying to assume the primary parental role" ( Matter of Battisti v Battisti , 121 AD3d 1196, 1197 [2014] [internal quotation marks, ellipsis and citation omitted]; see Matter of Sharon D. v Dara K. , 130 AD3d 1179, 1180 [2015]).

2018"It is well settled that a parent has a claim of custody of his or her child, superior to that of all others, in the absence of surrender, abandonment, persistent neglect, unfitness, disruption of custody over an extended period of time or other extraordinary circumstances" ( Matter of Battisti v Battisti , 121 AD3d 1196, 1196-1197 [2014] [internal quotation marks and citations omitted]; accord Matter of Mildred PP. v Samantha QQ. , 110 AD3d 1160, 1161 [2013]).

2021The nonparent bears the burden of proving extraordinary circumstances ( see Matter of Marcia ZZ. v April A. , 151 AD3d at 1304 ; Matter of Thompson v Bray , 148 AD3d 1364, 1365 [2017]).

2017“The extraordinary circumstances analysis must consider the cumulative effect of all issues present in a given case, including, among others, the length of time the child has lived with the nonpar-ent, the quality of that relationship and the length of time the parent allowed such custody to continue without trying to assume the primary parental role” (Matter of Peters v Dugan, 141 AD3d 751, 753 [2016] [internal quotation marks and citations omitted]; see Matter of Thompson v Bray, 148 AD3d at 1365 ; Matter of Brown v Comer, 136 AD3d 1173, 1174 [2016]).

2019Only after the nonparent establishes extraordinary circumstances may a court consider the best interests of the child ( see id. at 1176 ; Matter of Banks v Banks , 285 AD2d 686, 687 [2001]).

2011In prior cases, extraordinary circumstances have been established based upon the combined effect of factors, including the child’s psychological bonding and attachments, the prior disruption of the parent’s custody, separation from siblings and potential harm to the child, as well as the parent’s neglect or abdication of responsibilities and the child’s poor relationship with the parent (see Matter of Banks v Banks, 285 AD2d 686, 687 [2001]).

2018As the father correctly conceded in his surreply brief and at oral argument of this appeal, extraordinary circumstances exist under Domestic Relations Law § 72 (2) inasmuch as there has been "a 24-month separation of the [father] and child, which is identified as prolonged,' . . . the [father] voluntar[ily] relinquish[ed] . . . care and control of the child during such period, and . . . the [child] reside[d] . . . in the grandparents' household" ( Matter of Suarez v Williams , 26 NY3d 440, 448 [2015]; see § 72 [2] [a], [b]).

2017“The burden of proving extraordinary circumstances lies with the nonparent” (Matter of Renee TT. v Britney UU., 133 AD3d 1101, 1103 [2015]; see Matter of Evelyn EE. v Ayesha FF, 143 AD3d 1120, 1124 [2016], lv denied 28 NY3d 913 [2017]) and, once this showing is made, “Family Court may then proceed to the issue of whether an award of custody to the nonparent, rather than the parent, is in the child[ren]’s best interests” (Matter of Donna SS. v Amy TT., 149 AD3d at 1212-1213; see Matter of Suarez v Williams, 26 NY3d 440, 447 [2015]).

2018In so ordering, Family Court indicated that petitioner "appears to have demonstrated stability and has remained extremely committed to the child" and that the child "is very bonded to [petitioner]" and "thriving in her care." "[I]n light of the fact that an extraordinary circumstances analysis 'must consider the cumulative effect of all issues present in a given case'" ( Matter of Tamika B. v Pamela C. , 151 AD3d 1220, 1221 [2017], quoting Matter of Peters v Dugan , 141 AD3d 751, 753 [2016] [internal quotation marks and citations omitted]; see Matter of Heather U. v Janice V. , 152 AD3d 836, 8

2006The extraordinary circumstances test applies even if there is an existing order of custody unless there was a prior judicial determination that extraordinary circumstances exist (see Matter of Katherine D. v Lawrence D., 32 AD3d 1350 [2006]; Matter of Guinta v Doxtator, 20 AD3d 47, 53 [2005]; Matter of McArdle v McArdle, 1 AD3d 822, 823 [2003]; Matter of Scala v Parker, 304 AD2d 858, 859 [2003]). “[A]n existing ‘consent order, standing alone, does not constitute a judicial finding of surrender, abandonment, unfitness, neglect or other extraordinary circumstances’ ” (Matter of Moore v St.

2017“The burden of proving extraordinary circumstances lies with the nonparent” (Matter of Renee TT. v Britney UU., 133 AD3d 1101, 1103 [2015]; see Matter of Evelyn EE. v Ayesha FF, 143 AD3d 1120, 1124 [2016], lv denied 28 NY3d 913 [2017]) and, once this showing is made, “Family Court may then proceed to the issue of whether an award of custody to the nonparent, rather than the parent, is in the child[ren]’s best interests” (Matter of Donna SS. v Amy TT., 149 AD3d at 1212-1213; see Matter of Suarez v Williams, 26 NY3d 440, 447 [2015]).

2016Since a finding of extraordinary circumstances may have enduring consequences for the parent (see Matter of Renee TT. v Britney UU., 133 AD3d 1101, 1106 [2015]; Matter of Ray v Eastman, 117 AD3d 1114, 1114 [2014]; Matter of Cusano v Milewski, 68 AD3d 1272, 1273 [2009]), it can be challenged on appeal even if, as here, the parent ultimately obtained custody.

2016“The extraordinary circumstances analysis must consider 'the cumulative effect’ of all issues present in a given case” (Matter of Pettaway v Savage, 87 AD3d 796, 797 [2011], lv denied 18 NY3d 801 [2011], quoting Matter of Melody J. v Clinton County Dept. of Social Servs., 72 AD3d 1359, 1362 [2010], lv denied 15 NY3d 703 [2010]), including, among others, “the length of time the child has lived with the nonparent, the quality of that relationship and the length of time the . . . parent allowed such custody to continue without trying to assume the primary parental role” (Matter of Bevins v Wither

2011The extraordinary circumstances analysis must consider “the cumulative effect” of all issues present in a given case and not view each factor in isolation (Matter of Melody J. v Clinton County Dept. of Social Servs., 72 AD3d 1359, 1362 [2010], lv denied 15 NY3d 703 [2010]; see Matter of Cumber v O’Leary, 56 AD3d 1067 , 1070 [2008]).

2012Matter of Pettaway v Savage, 87 AD3d 796, 797-798 [2011], lv denied 18 NY3d 801 [2011]; Matter of Lori MM. v Amanda NN., 75 AD3d 774, 775 [2010]; Matter of Bevins v Witherbee, 20 AD3d at 719 ).

2012Matter of Pettaway v Savage, 87 AD3d 796, 797-798 [2011], lv denied 18 NY3d 801 [2011]; Matter of Lori MM. v Amanda NN., 75 AD3d 774, 775 [2010]; Matter of Bevins v Witherbee, 20 AD3d at 719 ).

2006The extraordinary circumstances test applies even if there is an existing order of custody unless there was a prior judicial determination that extraordinary circumstances exist (see Matter of Katherine D. v Lawrence D., 32 AD3d 1350 [2006]; Matter of Guinta v Doxtator, 20 AD3d 47, 53 [2005]; Matter of McArdle v McArdle, 1 AD3d 822, 823 [2003]; Matter of Scala v Parker, 304 AD2d 858, 859 [2003]). “[A]n existing ‘consent order, standing alone, does not constitute a judicial finding of surrender, abandonment, unfitness, neglect or other extraordinary circumstances’ ” (Matter of Moore v St.

2003Having satisfied the extraordinary circumstances requirement and according great deference to its factual findings and credibility assessments (see Matter of Scala v Parker, supra 859), we find that Family Court properly analyzed Mianna’s best interest and made an appropriate award to petitioner.

2025The extraordinary circumstances test applies when a nonparent individual seeks custody of a child over the parent's objection ( see Matter of Bennet v Jeffries , 40 NY2d 543 [1976]).

2025The extraordinary circumstances test applies when a nonparent individual seeks custody of a child over the parent's objection ( see Matter of Bennet v Jeffries , 40 NY2d 543 [1976]).

2026"A nonparent bears the heavy burden of establishing that there are extraordinary circumstances and, thus, that he or she has standing to seek custody of another person's child" ( Matter of Donna SS. v Amy TT. , 149 AD3d 1211 , 1212 [3d Dept 2017] [citations omitted]; see Matter Tamika B. v Pamela C. , 187 AD3d 1332, 1335 [3d Dept 2020]).

2021It is well settled that a parent's right to custody of his or her child is superior to that of all others absent a showing of "surrender, abandonment, persistent neglect, unfitness, an extended disruption of custody or 'other like extraordinary circumstances'" ( Matter of Donna SS. v Amy TT. , 149 AD3d 1211 , 1212 [2017], quoting Matter of Bennett v Jeffreys , 40 NY2d 543, 544 [1976]). "'The extraordinary circumstances analysis [*2]must consider the cumulative effect of all issues present in a given case, including, among others, the length of time the child has lived with the nonparent, the q

2026"An extraordinary circumstances inquiry involves consideration of the cumulative effect of all issues present in a given case and requires the nonparent to establish that there has been surrender, abandonment, persistent neglect, unfitness, an extended disruption of custody or other like circumstances" ( Matter of Leslie LL. v Robert NN. , 208 AD3d at 1481 [internal quotation marks and citations omitted]; see Matter of Lisa F. v Thomas E. , 211 AD3d 1367, 1368 [3d Dept 2022]).

2026"An extraordinary circumstances inquiry involves consideration of the cumulative effect of all issues present in a given case and requires the nonparent to establish that there has been surrender, abandonment, persistent neglect, unfitness, an extended disruption of custody or other like circumstances" ( id. [internal quotation marks and citations omitted]).

2018In so ordering, Family Court indicated that petitioner "appears to have demonstrated stability and has remained extremely committed to the child" and that the child "is very bonded to [petitioner]" and "thriving in her care." "[I]n light of the fact that an extraordinary circumstances analysis 'must consider the cumulative effect of all issues present in a given case'" ( Matter of Tamika B. v Pamela C. , 151 AD3d 1220, 1221 [2017], quoting Matter of Peters v Dugan , 141 AD3d 751, 753 [2016] [internal quotation marks and citations omitted]; see Matter of Heather U. v Janice V. , 152 AD3d 836, 8

1997Rather than employing a pure “best interests” analysis, the court, apparently in recognition of the mother’s achievements, invoked the extraordinary circumstances test of Bennett v Jeffreys ( 40 NY2d 543 ) and the factually inapposite Matter of Michael B. ( 80 NY2d 299 ).

2018Here, as in Katherine D. , we need not remit the matter for a new hearing on extraordinary circumstances "because the record is adequate to enable us to apply the extraordinary circumstances test" (32 AD3d at 1351; see Matter of Vincent A.B. v Karen T. , 30 AD3d 1100 , 1101 [4th Dept 2006], lv denied 7 NY3d 711 [2006]; cf. Matter of Howard v McLoughlin , 64 AD3d 1147, 1148 [4th Dept 2009]).

2006The extraordinary circumstances test applies even if there is an existing order of custody unless there was a prior judicial determination that extraordinary circumstances exist (see Matter of Katherine D. v Lawrence D., 32 AD3d 1350 [2006]; Matter of Guinta v Doxtator, 20 AD3d 47, 53 [2005]; Matter of McArdle v McArdle, 1 AD3d 822, 823 [2003]; Matter of Scala v Parker, 304 AD2d 858, 859 [2003]). “[A]n existing ‘consent order, standing alone, does not constitute a judicial finding of surrender, abandonment, unfitness, neglect or other extraordinary circumstances’ ” (Matter of Moore v St.

2018In so ordering, Family Court indicated that petitioner "appears to have demonstrated stability and has remained extremely committed to the child" and that the child "is very bonded to [petitioner]" and "thriving in her care." "[I]n light of the fact that an extraordinary circumstances analysis 'must consider the cumulative effect of all issues present in a given case'" ( Matter of Tamika B. v Pamela C. , 151 AD3d 1220, 1221 [2017], quoting Matter of Peters v Dugan , 141 AD3d 751, 753 [2016] [internal quotation marks and citations omitted]; see Matter of Heather U. v Janice V. , 152 AD3d 836, 8

2017Thus, in light of the fact that an extraordinary circumstances analysis “must consider the cumulative effect of all issues present in a given case” (Matter of Peters v Dugan, 141 AD3d 751, 753 [2016] [internal quotation marks and citations omitted]), and that the new facts relate directly to the circumstances that precipitated the children leaving the mother’s care and residing with the grandmother, we reverse Family Court’s order and remit the proceeding to Family Court *1222 for an expedited, reopened hearing on the issue of whether extraordinary circumstances exist and, if so, what physical

2026Pertaining to a grandparent specifically, the requisite showing of extraordinary circumstances may be satisfied through evidence of "a prolonged separation of the parent[ ] and the child[ren] for at least [*2] 24 months . . . during which the parent[ ] 'voluntarily relinquished care and control of the child[ren]' while [they] resided in the grandparent's household" ( Matter of Amber B. v Scott C. , 207 AD3d 847, 848 [3d Dept 2022], quoting Domestic Relations Law § 72 [2] [b]).

2026"An extraordinary circumstances inquiry involves consideration of the cumulative effect of all issues present in a given case and requires the nonparent to establish that there has been surrender, abandonment, persistent neglect, unfitness, an extended disruption of custody or other like circumstances" ( Matter of Leslie LL. v Robert NN. , 208 AD3d at 1481 [internal quotation marks and citations omitted]; see Matter of Lisa F. v Thomas E. , 211 AD3d 1367, 1368 [3d Dept 2022]).

2025The legislative history of the Raise the Age Law, which "is an important aid in understanding the meaning of its words" ( Matter of Hernandez v Barrios-Paoli , 93 NY2d 781, 786 [1999]), comports with the commonly understood meaning of the term "extraordinary circumstances." "New York State Assembly members debating the Raise the Age legislation indicated that the extraordinary circumstances requirement was intended to be a 'high standard' for the District Attorney to meet, and denials of transfers to Family Court 'should be extremely rare' " ( People v M.M. , 83 Misc 3d 1221[A] , 2024 NY Slip

2025Contrary to the mother's contention, petitioner established that extraordinary circumstances existed based on, among other things, the mother's voluntary relinquishment of physical custody of the children to petitioner, the prolonged separation of the children from the mother, the mother's relinquishment of all parental control during that time, and the psychological attachment the children had to petitioner ( see Cross , 235 AD3d at 1266; Matter of Gunther v Brown , 148 AD3d 889, 890 [2d Dept 2017]; Matter of Hunte v Arnold , 147 AD3d 946, 947 [2d Dept 2017]).

2025Contrary to the mother's contention, petitioner established that extraordinary circumstances existed based on, among other things, the mother's voluntary relinquishment of physical custody of the children to petitioner, the prolonged separation of the children from the mother, the mother's relinquishment of all parental control during that time, and the psychological attachment the children had to petitioner ( see Cross , 235 AD3d at 1266; Matter of Gunther v Brown , 148 AD3d 889, 890 [2d Dept 2017]; Matter of Hunte v Arnold , 147 AD3d 946, 947 [2d Dept 2017]).