Three appellate decisions published the last week in October provide a primer on awards of custody to non-parents.

In its October 27, 2011 decision in Matter of Wayman v. Ramos, the Third Department reversed Broome County Family Court Jusge Spero Pines‘ dismissal of a grandparents’ petition for custody of five and six year old children. In July, 2007, the mother (who had been awarded custody of the children following her separation from her husband) left the children with her parents while she attempted to stabilize her life. By November, 2007, with the mother’s consent and the father’s failure to appear, joint legal custody of the children had been awarded to both the mother and her parents, with primary physical custody being awarded to the grandparents.

Shortly thereafter, however, each of the mother and father filed a petition seeking sole custody of the children. In April, 2009, the Family Court dismissed both parents’ petitions on the grounds that there had not been a sufficient change in circumstances since November, 2007, to warrant a modification of the prior arrangement. On appeal from that dismissal, the Third Department reversed, reinstating the parents’ petitions: the Family Court had failed to make the required threshold determination that extraordinary circumstances existed to warrant the award of custody to a non-parent. Moreover, on the record before the Third Department of 2010, the appellate court believed no such extraordinary circumstances existed.

Thus, the Third Department has an apparent rule that extrarodinary circumstances must be demonstrated by the non-parent custodian at each proceeding.

In Wayman, while the Family Court was considering the matter again, the children continue to reside with their maternal grandparents. In September 2010, the grandparents commenced their own proceedings seeking sole custody (they had joint legal custody with the mother under the November, 2007 order). In response to the September, 2010 application of the grandparents, the mother (who had herself moved to Florida in April 2009), also sought sole custody. Family Court Judge Pines dismissed the grandparents’ custody petition without providing the grandparents with a hearing, concluding that even if the facts alleged by the grandparents were true, such would not constitute extraordinary circumstances warranting an award of custody away from the parents.

The Third Depatment’s October, 2011 decision, disagreed with the Judge Spero’s dismissal of the grandparents’ custody petition without a hearing. The appellate court noted that generally:

the parent’s claim is superior in the absence of surrender, abandonment, persistent neglect, unfitness, disruption of custody over an extended period of time or other extraordinary circumstances.

In that regard,

evidence that the parent has failed either to maintain substantial repeated and continuous contact with the child or to plan for the child’s future has been found to constitute persistent neglect sufficient to rise to the level of an extraordinary circumstance.

Generally, the Third Department ruled, a hearing must be conducted unless the grandparents failed to make a sufficient should showing which would warrant such a hearing, or the the court had sufficient information to undertake a comprehensive independent review of the children’s best interests in the absence of a hearing.

Here, the grandparents had alleged that the children had lived with them for over 38 months, and that in the 18 months since the Family Court in April, 2009 dismissed the parents’ petitions, both the mother and father abdicated their parental rights and responsibilities. Moreover, it was alleged that the mother, since moving to Florida, had visited the children only once, speaking rarely with the children by telephone. The mother had not provided the grandparents with an address or telephone number where she could be reached.

With respect to the father, the grandparents claimed that he was unable to maintain steady employment, and failed to establish a stable residence for the children, moving at least five times since March, 2009. Again, it was alleged that there was only sporadic contact with the children, with no contact since July, 2010. Considering that the children have had resided with the grandparents for most of their young lives, such allegations set forth sufficient facts which could support a finding of extraordinary circumstances.

Accordingly, the Third Department sent the case back to the Family Court once again for a hearing to determine whether extraordinary circumstances existed to depart from the general rule favoring custody by parents, and if such extraordinary sense circumstances were found to exist, whether it was in the children’s best interests for the grandparents to maintain custody.

Also on October 27, 2011, , the Third Department issued its decision in Matter of Daphne Oo v. Frederick Qq. Here, the appellate court affirmed an order of Thompkins County Family Court Judge M. John Sherman which granted the maternal grandmother’s application for custody of her now seven-year-old granddaughter. The child has been the subject of numerous custody proceedings. The child had resided with her grandmother for the first four years of her life. In July, 2007, an order was entered giving the mother legal custody, but only for so long as the mother continue to reside with the grandmother. In January 2009, the Family Court transferred custody to the father after finding that the mother had become unfit, due to, among other reasons, mental health issues. The grandmother instituted her custody proceeding month later.

Following a hearing, the Family Court found that extraordinary circumstances justified an award of custody to a non-parent maternal grandmother. Moreover, the Family Court found that it was in the child’s best interests for the child to be in the maternal grandmother’s custody.

On appeal, the Third Department affirmed, noting the testimony of an expert in the field of sexual abuse who had met with the child four times and interviewed various family members. The expert had testified that the child informed her of several instances when the father inappropriately touched the child by rubbing his fingers on her vagina. The father also reportedly told the child not to tell anyone about such touching or he would go to jail. The expert, and other witnesses, related physical activities of the young girl consistent having been subjected to sexual abuse and otherwise corroborating the child’s statements. The father denied the sexual contact. However, Family Court Judge Sherman resolved that credibility issue against father, to which the appellate court deferred. The sexual misconduct establish the requisite extraordinary circumstances first needed to determine whether the court should decide whether it would be in the best interests of the child to place custody in the non-parent.

Additional evidence supported placing custody with the maternal grandmother: living together for the first four years of life; the grandmother’s stable employment; a stable home life providing the girl with her own room. On the other hand, the father had quit his job in anger; the child and her clothes were often dirty while the girl was in her father’s care. Notably, while left in the father’s care, the child would be allowed to spend “an inordinate amount of time with his mother [the paternal grandmother] who had a long history of numerous indicated reports regarding her [the paternal grandmother’s] care of children.” The award of custody to the maternal grandmother was supported amply by the record.

On October 25, 2011, in Matter of Fleischman v. Hall, the Second Department reversed Suffolk County Family Court Judge Andrew G. Tarantino, Jr.‘s dismissal of a mother’s proceeding to modify a November 2, 2009, order of Suffolk County Family Court Judge Martha Luft which had awarded custody of a child to the paternal grandmother. Inherent in the November 2, 2009 order was the establishment that extraordinary circumstances existed to support the loss of the birth parent’s preferred custodial status.

The Mother’s September 10, 2009 proceeding sought to modify that November, 2009 order. To modify the prior or, it was necessary for the mother to prove that there had been a change of circumstances which required a modification of that order to ensure the best interests of the child. Family Court Judge Tarantino held the mother failed to meet that burden.

The Second Department, when considering the denial of the modification of the November, 2009 order, determined that, indeed, there was a sound in substantial basis in the record for Judge Tarantino to determine that the mother failed to make the proper showing of a change in circumstances for the period of time from the hearing underlying the November, 2009 custody award through September 10, 2009, the date the mother filed her modification petition.

However, although finding that Judge Tarantino made the right decision for the right reason, i.e., there was an insufficient demonstration of changed circumstances through the filing of the mother’s modification petition, the Second Department reversed, holding that “a sufficient amount of time has now lapsed to warrant consideration of the issue of whether such a finding [of changed circumstances] is warranted, particularly as Judge Tarantino limited testimony on the modification proceeding to facts occurring on or before the date of the filing of the mothers modification petition. The length of the judicial process, alone, warranted the reversal of Judge Tarantino’s decision.

Was the Second Department telling Judge Tarantino he should have considered facts through the date of the hearing before him?

The Second Department reaffirmed that the standard ultimately to be applied remains what is in the best interests of the child. The appellate court refused to ignore the additional lapse of time occurring after September 10, 2009, the date mother filed her modification petition. Moreover, the Appellate Division refused to ignore the possibility that circumstances indeed changed while the appellate process continued!

Thus, under the particular circumstances of this case, ‘and in light of the time that has elapsed and the pace of the psychological development of the child whose best interest is the primary concern, we conclude that the record before us is no longer sufficient for determining the ultimate issues presented.

Accordingly, the Second Department sent the matter back to the Suffolk County Family Court for a new hearing to determine whether, considering the best interests of the child, current circumstances support the child’s continued custody with the non-parent. Will it be assumed in that remitted proceeding that extraordinary circumstances still exist to support custody by the non-parent: will the hearing be thus limited to whether the best interests of the child favors mom over grandma; or will grandma have to prove, all over again, whether extraordinary circumstances still exist to get to the secondary best-interests standard.

These children have spent half their lives going through the court system. While the Second Department is mindful of the “the pace of the psychological development of a child” — of just how long four years of court proceedings must seem to a seven year-old; recent efforts to speed up the process and court-system Standards and Goals look far different to jurists and practitioners than through the eyes of a young child.