Nonparents and Child Custody

An appeal of an order of the Family Court awarding Petitioner Aunt sole legal and physical custody of Respondent Parent’s children, with visitation to the respondents (the mother’s visitation to be supervised).  Petitioner brought the underlying petition to modify two existing custody orders which gave physical and legal custody of the younger child to the Respondent Mother and physical custody of the older child to the Aunt with visitation to the Mother.

In order for a nonparent to overcome a parent’s superior right to custody, the nonparent must meet the heavy burden of establishing extraordinary circumstances.  The Court considers several factors in making such a determination including “as the length of time the child has resided with the nonparent, the quality of the child’s relationships with the parent and the nonparent, the prior disruption of the parent’s custody, separation from siblings and any neglect or abdication of responsibilities by the parent.”  A Nassau County Family Law Attorney said because the trial court failed to address this issue the Appellate Division did so.

The Appellate Division ultimately found the Petitioner met her burden of extraordinary circumstances.  The mother was experiencing dramatic health issues which affected her ability to care for the children.  These were severe pulmonary issues which required the aid of oxygen.  According to testimony by the Petitioner and partially corroborated by the Mother, the Mother would depend on the children to assist her with personal and health needs.  The younger child had developed behavioral issues and would get into trouble at school as a result of the Mother’s condition hindering her ability to supervise.  The Appellate Division held the Petitioner met her burden of extraordinary circumstances because it was evident “the mother neglected the younger child and/or generally abdicated her parental responsibilities by…placing the child with questionable caretakers while the mother was hospitalized, fail[ed] to provide adequate living conditions and proper dental care, requir[ed] the child to care for the mother’s health needs and repeatedly subjecting the child to stressful confrontations regarding her custody.”

A Long Island Child Custody Lawyer said that once the Petitioner met her burden of extraordinary circumstances, the Appellate Division went on to whether the custody modification would be in the best interest of the child.  In light of the above facts and the relationship the children had with the Petitioner there was a sound basis to award the Petitioner with custody of bother children.

At times the best interests of a child may demand custody be awarded to a nonparent.  If you have a similar situation as the case above or a parent that wishes to know their rights seek out the advice of the experienced family law attorneys at Simonetti & Associates.