Grandparent Custody Part Two


August 2005, By John Virdone and Jerome Wisselman

Part Two of a Two-Part Article

In last month's newsletter, we explored the state of the law on grandparent custody of children prior to the amendments to FCA § 651(b) and DRL § 72(2)(a) (b) (c), which codified jurisdiction to hear and determine petitions filed by grandparents for custody of their grandchildren. The amendments, which went into effect on Jan. 5, 2004, appeared to change the law to make it easier for grandparents to gain or keep custody of grandchildren.

The leading case law previous to the amendments could be found in Matter of Bennett v. Jeffreys, 40 NY 2d 543, 387 NYS 2d 821, 356 NE 2d 277 (1976), in which the Court of Appeals held that a parent has a superior right to custody over a nonparent unless the nonparent meets the burden of proving "extraordinary circumstances." Once such extraordinary circumstances are shown, a court may then move on to consider custody in light of the best interests of the children. After the amendments went into effect, the question became, did those amendments substantially change the law for grandparents seeking custody?

The Amendments

The New York Senate Introducer's Memorandum in Support of Bill S422A, which amended FCA 651(b) and DRL § 72(2)(a) (b) (c), characterized the new legislation's purpose as defining "extraordinary circumstances" with respect to the legal rights of certain grandparents who wish to petition the court for custody of their grandchildren. The legislative intent, however, as set forth in the Summary Provisions of the memorandum, explicitly states that it was not the purpose of the legislature to overrule existing case law as it relates to the ability of third parties to obtain standing in custody proceedings.

The Memorandum further sets forth the following:

  • 0. Existing Law [prior to amendments]: Current statute does not specifically grant grandparents standing to petition the court for custody of their grandchildren nor does current statute give specific guidance to the court in regard to extraordinary circumstances as they might apply to children who have resided with their grandparents.
  • 0. Justification [for the bill]: Current data from the Census Bureau reveal that a substantial number of children live in grandparent-headed households. While other states have extended legal rights to such grandparents to enable them to petition for the custody of a dependent grandchild when the child's parents have abandoned their responsibilities to plan and care for their children, New York has not. Unfortunately, this has resulted in situations where children are abruptly uprooted and removed from their grandparent's home to live with adults who are virtual strangers to them and in some cases cannot or will not provide a nurturing environment.
  • The amendments to Family Court Act § 651(b) and Domestic Relations Law § 72 (2)(a) (b) (c) were purportedly put in place to remedy these problems. Family Court Act ¤ 651(b) now states as follows:
  • "(b) When initiated in the family court, the family court has jurisdiction to determine ... habeas corpus proceedings and proceedings brought by petition and order to show cause, for the determination of the custody or visitation of minors, including applications by a grandparent or grandparents for visitation or custody rights ... " (Italics indicate amendment.)

Changes to Domestic Relations Law § 72 (2)(a) (b) (c) were added. It now reads:

  • "(2) (a) Where a grandparent or the grandparents of a minor child, residing within this state, can demonstrate to the satisfaction of the court the existence of extraordinary circumstances, such grandparent or grandparents of such child may apply to the supreme court by commencing a special proceeding or for a writ of habeas corpus to have such child brought before such court, or may apply to family court pursuant to subdivision (b) of section six hundred fifty-one of the family court act; and on the return thereof, the court, by order, after due notice to the parent or any other person or party having the care, custody, and control of such child ... may make such directions as the best interests of the child may require, for custody rights for such grandparent or grandparents in respect to such child. An extended disruption of custody, as such term is defined in this section, shall constitute an extraordinary circumstance.
  • (b) For the purposes of this section an extended disruption of custody shall include, but not be limited to, a prolonged separation of the respondent parent and the child for at least twenty-four continuous months during which the parent voluntarily relinquished care and control of the child and the child resided in the household of the petitioner grandparent or grandparents, provided, however, that the court may find that extraordinary circumstances exist should the prolonged separation have lasted for less than twenty-four months."

The language of the amendments appear, at first glance, to create a new right by which a court could find that, where a child has lived in the grandparent's household for at least 24 continuous months, extraordinary circumstances exist and there is no necessity for a hearing on that issue. On this basis, the court could proceed immediately to a best interests hearing between a grandparent and parent.

Application of New Law in Tolbert

The Second Department addressed the amendments in Tolbert v. Scott, 15 AD 3d 493, 790 NYS 2d 495 (2nd Dept. 2005), a case that involved custody of a 5-year-old girl who had resided in her grandmother's home -- along with her mother -- for a period in excess of 24 months. The subject child was born to unmarried parents in November 1999. In 2000, the father sought an order of visitation, but the court ordered supervised visitation instead. In 2001, the father's parenting time with the child was enlarged and he was granted unsupervised overnight visitation. There was no prior custody order, but it was undisputed that from birth to October 2003, the child lived with her mother at the maternal grandmother's home. During that entire period, the grandmother admitted that she worked out of town nearly every Monday morning through Thursday evening. The father alleged, that at all times prior to October 2003, the child's mother was the primary caregiver.

In October 2003, the mother brought the child to live with the father at his home. On Nov. 3, 2003, he instituted an action for custody against the mother. In December 2003, the maternal grandmother brought suit for custody against both the mother and the father. Both actions were consolidated. On Dec. 31, 2003, the Family Court issued a temporary custody order in favor of the father, with visitation to the grandmother.

After several conferences were held and court-ordered forensics were conducted, Family Court, without a full hearing, issued an order indicating that it found "extraordinary circumstances" existed pursuant to the amendments in DRL § 72 (2) (a) & (b) and FCA § 651(b), and that the father voluntarily relinquished the care and control of the child over a period of 24 months while the child resided in the grandparent's home. That same day, over the father's objection and without holding a full hearing, Family Court issued an order vacating the temporary custody order and granting temporary joint custody to the father and the grandmother with primary physical custody to the grandmother. (The mother failed to appear in the consolidated custody action except for one court conference in March 2004, at which time she indicated that she did not want custody of the child.) The court granted the father's motion for leave to appeal both the finding of extraordinary circumstances and the order granting joint custody to the father and grandmother.

On Appeal, Bennett v. Jeffreys Resurfaces

The main issue that came up on appeal in the Tolbert matter was the question of whether the Family Court erred in determining without a hearing pursuant to FCA 651(b) that "extraordinary circumstances" existed.

The right of a parent to the confrontation and cross-examination of witnesses in a custody dispute is significant. It is has been long held by the courts in this State that the right of a parent to enjoy the custody and companionship of his or her children is fundamental. Matter of Patricia L. v. Steven L., 119 A.D. 2d 221 (2nd Dept 1986); Bennett, supra. Parties cannot be forced to waive their right to confrontation and cross-examination on issues involving custody and visitation. Waldman v. Waldman, 95 A.D. 2d 827, 463 N.Y.S. 2d 868, 870 (2nd Dept. 1983). Traditionally, the courts have conducted comprehensive fact-finding hearings in third-party custody cases to determine whether "extraordinary circumstances" exist before proceeding to the "best interests of the child test." See Matter of Lewis v. Johnson, 302 A.D. 2d 756 (3d Dept. 2003) (Appellate Division remanded for new trial due to scant record and conclusive nature of oral bench decision finding extraordinary circumstances after a hearing.); Matter of Cartwright v. Workman, 304 A.D. 2d 862 (3rd Dept. 2003) (Appellate Division affirmed Family Court decision indicating petitioner failed to sustain her burden to demonstrate extraordinary circumstances after a fact-finding hearing.); Matter of Cote v. Brown, 299 A.D. 2d 876 (4th Dept. 2002) (Appellate Division affirmed Family Court decision indicating petitioner failed to sustain her burden to prove, after a fact finding hearing, that extraordinary circumstances existed.). In particular, the Second Department has held that a full and fair hearing must be held before the issue of custody is determined. See Mosesku v. Mosesku, 108 A.D. 2d 795 ( 2d Dept. 1985); Avella v. Avella, 74 A.D. 2d 592 ( 2d Dept. 1980) ; Corso v. Corso, 48 A.D. 2d 652 (2d Dept. 1975).

Since "extraordinary circumstances" is a threshold issue and must be made by judicial finding before the court can proceed to the "best interest of the child test," a full and fair hearing pursuant to DRL § 72 (2) (a) is required to determine that issue. See Bennett, supra and Matter of Lewis, supra. The Second Department has recently confirmed that the threshold showing of the existence of extraordinary circumstances is a fact-finding process: "Such factual findings, which are predicated on the Family Court's evaluation of the testimony, character, temperament, and sincerity of the parties, are entitled to great deference and cannot be set aside where, as here [sic], they have a sound and substantial basis in the record." Matter of Rudy v. Mazzetti, 5 A.D. 3d 777 (2d Dept. 2004).

Because the Family Court in Tolbert did not conduct a full and fair hearing on the threshold issue of "extraordinary circumstances," the Appellate Division was unable to determine the basis for Family Court's conclusory finding that extraordinary circumstances existed in this case. The Second Department therefore reversed and remanded for determination of that issue.

Extended Disruption of Custody, According to the Amendments

Although the Appellate Division in Tolbert did not elaborate on what constitutes an "extended disruption of custody," the amendments to the statute define this term to include those situations where the parent "voluntarily relinquished care and control of the child." But when the mother acquiesces to the child's living in a grandparent's household -- where the mother also resides, and where the noncustodial parent visits and supports the child -- is there a relinquishment of care and control within the meaning of the statute, as the lower court had found?

A voluntary relinquishment of care and control would require a prolonged period of separation and non-support. The Bennett court makes several references to "unfortunate or involuntary disruption of custody" in its discussion of extraordinary circumstances. In addition, existing case law in this area describes circumstances where the parent's lack of contact, lack of support and planning with the child constitutes a disruption of custody. See Tyrigue P. supra ; Bisiqnano, supra, Tompkins, supra, and Charles C., supra. These matters are clearly distinguishable from cases where the parent regularly exercises visitation and supports the child. See People ex rel. Anderson, supra and Brewster, supra. A "disruption of custody" clearly refers to the circumstance where the parent has essentially abandoned their parental responsibilities. The fact that the child resided in the grandparent's household, without more, would not be sufficient for the court to find an "extended disruption of custody."


As illustrated by the Tolbert decision, even where the petitioning party is a grandparent, a court is not permitted to skip steps. The amendments to FCA § 651(b) and DRL § 72(2) (a) & (b) do not abrogate the requirements articulated in Bennett v. Jeffreys. In all cases where grandparents are seeking custody of their grandchildren, they continue to have the substantial burden of establishing standing, by competent proof at a full and fair hearing, that "extraordinary circumstances" exist. Although the language of the amendments may appear on its face to abrogate that requirement, this is not the case.

In addition, the amendments have not changed the fact that in custody proceedings the court must avail the parents of due process in order to safeguard their fundamental rights to the care and control of their children. Finally, as part of its duty to protect due process rights and to render a decision capable of intelligent appellate review, the court must articulate on the record the exact facts it relied upon to determine that extraordinary circumstances exist.

The effect of the changes to pre-existing law on third party custody, even when grandparents are the petitioners, is summed up by the Second Circuit in Tolbert: "The new amendments serve a beneficial purpose and they do not significantly alter the pre-existing law pursuant to Matter of Bennett v. Jeffreys."

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