In the landmark case of Troxel v. Granville, decided in 2000, the United States Supreme Court stated that the interest of parents in the care, custody and control of their children is a fundamental constitutional right and the high court struck down Washington state visitation statute because it unconstitutionally infringed on that fundamental parental right by allowing non parents to petition in Court for visitation. On June 9, 2016, when the New York Court of Appeals decided SL v. JR, the Court stated that parents have a fundamental right to custody of their children and held that in New York child custody litigations, as a general matter, custody determinations should be rendered only after a full and plenary hearing. In a child custody conflict between two parents, if a trial court does opt to forego a fact hearing, great care must be taken to clearly articulate which factors were -- or were not -- material to the trial court's determination, and the evidence supporting its decision.
That is not the rule of law when the child custody conflict is between a parent and a non parent. In New York state, ever since the 1976 landmark case Matter of it has been settled law that a non-parent can petition in Court for child custody. However, the petitioning non parent has a dual burden of proof, to establish "standing to sue" and the presence of "extraordinary circumstances."
In the recent case Maddox v. Maddox, decided by the Appellate Division, Second Department on July 6, 2016, the appellate court affirmed the dismissal of a grandparent's child custody petition without a hearing. The appellate court stated that to obtain a hearing the non parent must a file a verified petition which contains legally sufficient allegations of "extraordinary circumstances":
"In a child custody dispute between a parent and a non parent, the parent has a superior right to custody that cannot be denied unless the nonparent establishes that the parent has relinquished that right due to surrender, abandonment, persistent neglect, unfitness, or other extraordinary circumstances". The burden of proof is on the non parent to "prove the existence of extraordinary circumstances in order to demonstrate standing when seeking custody against a child's parent". Without proof of such extraordinary circumstances, an inquiry into the best interests of the child is not triggered.
" A hearing to determine the issue of standing is not necessary where there are no triable issues of fact raised in the submitted papers"
"Here, the grandmother's petition failed to sufficiently allege the existence of extraordinary circumstances. Accordingly, the Family Court properly dismissed the petition, without a hearing, based upon her lack of standing." (case citations omitted)
The present New York rule of law is that the non parent does not possess any "fundamental right" to petition for child custody or visitation. Until New York state permitted same sex marriage, and the United States Supreme Court ruled that same sex marriage is a constitutional right in every state, the definition of who is a parent within the meaning of the statute posed a huge and often insurmountable obstacle for the LGBT community. A 1991 case, Alison D. v. Virginia M., 77 N.Y.2d 651, involved the request of a of a woman's former same-sex partner to be granted visitation with the child the partner had when they were together. The New York Court of Appeals then ruled that visitation rights are available only to people who are "parents" through biology, marriage or adoption.
Fast forward to 2016. In two closely watched cases now before the New York Court of Appeals, Matter of Brooke S.B. v. Elizabeth A. C.C., 91, and Matter of Estrellita A. v. Jennifer D., 92, the New York Court of Appeals is being asked to expand that definition of who is a parent to two former same-sex partners who have been denied visitation rights with children they have neither borne nor adopted.
Stay tuned . . . .