This opinion is uncorrected and subject to revision before
publication in the New York Reports.
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No. 198
In the Matter of Ricardo Suarez,
et al.,
Appellants,
v.
Melissa Williams, et al.,
Respondents.
Linda M. Campbell, for appellants Suarez.
Patrick J. Haber, for appellant child.
Christopher M. Judge, for respondent Williams.
STEIN, J.:
This custody dispute between a child's mother and
paternal grandparents concerns the interpretation and application
of Domestic Relations Law § 72 (2) and this Court's decision in
Matter of Bennett v Jeffreys (40 NY2d 543 [1976]). We hold that
grandparents may demonstrate standing to seek custody based on
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extraordinary circumstances where the child has lived with the
grandparents for a prolonged period of time, even if the child
had contact with, and spent time with, a parent while the child
lived with the grandparents. Hence, we reverse and remit to the
Appellate Division for consideration of issues raised, but not
reached, by that Court.
I.
The child at issue here (born 2002) lived with his
paternal grandparents, beginning when he was less than 10 days
old and continuing until he was almost 10 years old. The child's
father moved out of state in 2004 and has had visitation since
then. The child's mother lived approximately 12 miles from the
grandparents for the child's first few years, until the
grandparents moved the mother (and her daughters from a previous
relationship) into a trailer that the grandparents purchased and
situated in a trailer park across the street from their
residence, so she would be close to the child. In a 2006
proceeding in which the grandparents were not involved, the
child's parents obtained a consent order awarding the parents
joint legal custody, with primary physical custody to the mother.
Nevertheless, the reality of the family's situation did not
change; the child continued to reside with the grandparents.
Also in 2006, the grandparents moved to an adjoining county. Due
to the distance between their homes, the mother had less contact
with the child until late 2008, when the grandparents again
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helped her move closer to them. The grandparents evidently kept
the mother informed of the child's activities almost daily. In
addition, the mother saw the child regularly including, at times,
weekly overnight visits and vacations. In 2010, the mother began
a relationship with a new boyfriend, and they gradually began
making plans to live together. In 2012, after the father sought
custody from the mother and a termination of his child support
payments to her,1 she refused to return the child to the
grandparents after a visit, relying on the 2006 custody order
granting her primary physical custody. At that time, the mother
told the grandparents that they had had the child for many years,
it was her "turn now," and they could no longer see him.
As a result, the grandparents commenced this proceeding
seeking primary physical custody of the child.2 Following a
10-day hearing, Family Court found that the mother was generally
not credible and that "the [g]randparents' version of where [the
child] lived since birth is the substantiated and more accurate
representation of reality." The court found that there had been
an extended disruption of custody between the mother and the
child, and that the mother voluntarily relinquished care and
control of him to the grandparents -- through three written
1
Although the father was regularly paying child support to
the mother, she did not provide the grandparents with any money
for the child's care.
2
The father withdrew his custody petition against the
mother and supported the grandparents' petition.
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documents and through her behavior -- and concluded that this
amounted to extraordinary circumstances. The court then
considered the child's best interest and granted joint custody to
the grandparents and the father, with primary physical custody to
the grandparents and visitation to each parent.
The Appellate Division reversed and dismissed the
grandparents' petition (128 AD3d 20 [4th Dept 2015]).
Specifically declining to disturb Family Court's credibility
determinations, the Appellate Division found the situation to be
akin to joint custody, with the grandparents having primary
physical custody and the mother having visitation. Nevertheless,
the Court held that the grandparents failed to demonstrate
extraordinary circumstances, in light of the mother's presence in
the child's life, even though he was primarily living with the
grandparents. Thus, the Court concluded that the grandparents
lacked standing to seek custody and dismissed their petition.
This Court granted the grandparents leave and a stay pending
appeal (25 NY3d 1063 [2015]).
II.
In the seminal case of Matter of Bennett v Jeffreys, we
created a two-prong inquiry for determining whether a nonparent
may obtain custody as against a parent (see 40 NY2d at 546-548).
First, the nonparent must prove the existence of "extraordinary
circumstances" such as "surrender, abandonment, persisting
neglect, unfitness, and unfortunate or involuntary disruption of
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custody over an extended period of time" (id. at 546), "or other
like extraordinary circumstances" (id. at 544). If extraordinary
circumstances are established such that the nonparent has
standing to seek custody, the court must make an award of custody
based on the best interest of the child (see id. at 548).
Consistent with that case, Domestic Relations Law § 72
(2) contains a specific example of extraordinary circumstances.
Originally, Domestic Relations Law § 72 addressed only
grandparent visitation. However, in recognition of the important
role of grandparents and the increasing number of grandparents
raising their grandchildren, the Legislature amended the statute
in 2003 to include a second subdivision, pertaining to custody
(see L 2003, ch 657, § 2; Matter of Carton v Grimm, 51 AD3d 1111,
1112 n [3d Dept 2008], lv denied 10 NY3d 716 [2008]). That
subdivision provides that "[w]here a grandparent . . . of a
minor child . . . can demonstrate to the satisfaction of the
court the existence of extraordinary circumstances, such
grandparent . . . may apply to family court [for custody]," and
the court "may make such directions as the best interests of the
child may require, for custody rights for such grandparent . . .
in respect to such child. An extended disruption of custody, as
such term is defined in this section, shall constitute an
extraordinary circumstance" (Domestic Relations Law § 72 [2] [a]
[emphasis added]). The statute then defines "extended disruption
of custody" to
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"include, but not be limited to, a prolonged
separation of the respondent parent and the
child for at least [24] 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 [24] months" (Domestic Relations Law §
72 [2] [b]).
The legislative intent, as stated in the bill enacting
this amendment, was "to provide guidance regarding the ability of
grandparents to obtain standing in custody proceedings involving
their grandchildren," but was "in no way intended to limit the
state of the law as it relates to the ability of any third party
to obtain standing in custody proceedings" against a birth parent
(L 2003, ch 657, § 1). The sponsors' memoranda articulate the
purpose of the bill as being "[t]o define an extraordinary
circumstance with respect to the legal rights of certain
grandparents who wish to petition the court for custody of their
grandchildren" (Senate Sponsor's Memo at 1; Assembly Sponsor's
Memo at 1; see Matter of Carton, 51 AD3d at 1113). The sponsors
emphasized that the bill specifically states that it is not
intended to overrule existing case law relating to third parties
obtaining standing in custody cases (see Senate Sponsor's Memo at
1; Assembly Sponsor's Memo at 1). In addressing the law as it
existed before the amendment, the sponsors stated that the
"[c]urrent statute does not specifically grant grandparents
standing to petition the court for custody of their
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grandchildren[,] nor does [it] give specific guidance to the
court in regard to extraordinary circumstances as they might
apply to children who have resided with their grandparents"
(Senate Sponsor's Memo at 2; Assembly Sponsor's Memo at 2).
Although the mother contends otherwise, the statute is
entirely consistent with Matter of Bennett v Jeffreys, in that it
requires that grandparents prove the existence of extraordinary
circumstances in order to demonstrate standing when seeking
custody against a child's parent. Indeed, the budget report on
the bill indicates that it "simply clarifies in statute that
grandparents specifically can petition for custody" (Budget
Report on Bills, L 2003, ch 657, Bill Jacket at 5). Thus, the
purpose of the statute is plain -- it creates a clear path, or
procedural mechanism, for grandparents to obtain standing when
seeking custody (see Matter of E.S. v P.D., 8 NY3d 150, 157
[2007]; Matter of Wilson v McGlinchey, 2 NY3d 375, 380 [2004];
see also Debra H. v Janice R., 14 NY3d 576, 597 [2010]). The
statute does not create new rights for grandparents, but merely
clarifies a method by which grandparents may exercise those
rights, and defines an alternative type of extraordinary
circumstance applicable only to grandparents -- specifically, an
extended disruption of custody -- in view of their special status
(see Matter of Tolbert v Scott, 15 AD3d 493, 495-496 [2d Dept
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2005]).3
III.
Domestic Relations Law § 72 (2) sets forth three
"elements" required to demonstrate the extraordinary circumstance
of an "extended disruption of custody," specifically: (1) a
24-month separation of the parent and child, which is identified
as "prolonged," (2) the parent's voluntary relinquishment of care
and control of the child during such period, and (3) the
residence of the child in the grandparents' household. Regarding
the third element, inasmuch as both Family Court and the
Appellate Division found that the child primarily lived with the
grandparents for almost 10 years, and that factual finding is
supported by the record, we may not disturb it (see Matter of
E.S., 8 NY3d at 158; Matter of Gabrielle HH., 1 NY3d 549, 550
[2003]). Consequently, only the first two elements are seriously
in dispute here.
The mother argues that the separation of the parent and
child must be nearly complete and that the parent must relinquish
all care and control, with little or no contact between the
parent and child, in order for the first two elements to be
3
To the extent the grandparents and attorney for the child
argue that the Appellate Division decision could be read as
finding the statute to be unconstitutional, we note that the
statute's constitutionality was not challenged in either that
Court or Family Court. Moreover, our reading of the Appellate
Division decision leads us to conclude that the constitutional
issue was not addressed therein. Thus, that issue is not before
us.
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established. She contends that no prolonged separation occurred
here because she had regular contact with the child. She also
contends that she did not relinquish care and control because she
cared for the child on regular visits, including overnights and
vacations, and because the grandparents obtained, and acted with,
her permission when making decisions about him.4
Contrary to the mother's contention, a lack of contact
is not a separate element under the statute. Indeed, there is no
explicit statutory reference to contact or the lack thereof.
Rather, the quality and quantity of contact between the parent
and child are simply factors to be considered in the context of
the totality of the circumstances when determining whether the
parent voluntarily relinquished care and control of the child,
and whether the child actually resided with the grandparents for
the required "prolonged" period of time. Indeed, some Appellate
Division cases have identified a variety of factors for courts to
4
The mother also erroneously argues that the standard for
extraordinary circumstances requires the parent to engage in
gross misconduct or utter irresponsibility. This Court has used
such language, but we did so in a case decided almost 20 years
before Domestic Relations Law § 72 (2) was enacted. That case
involved a mother who had turned her child over to potential
adoptive parents after agreeing to an adoption -- which would
have resulted in a permanent termination of all parental rights -
- and, soon thereafter, changed her mind and tried to regain care
and control of her child (see Matter of Male Infant L., 61 NY2d
420, 427 [1984]). The language requiring gross misconduct or
utter irresponsibility should not be taken out of context to
further heighten the standard for establishing standing in all
nonparent custody cases, where the parents -- although
potentially being deprived of custody -- otherwise retain their
parental rights.
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consider in determining whether extraordinary circumstances
exist, such as "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
Bevins v Witherbee, 20 AD3d 718, 719 [3d Dept 2005]; see Matter
of Curless v McLarney, 125 AD3d 1193, 1195 [3d Dept 2015]; Matter
of Aida B. v Alfredo C., 114 AD3d 1046, 1048 [3d Dept 2014];
Matter of Marcus CC. v Erica BB., 107 AD3d 1243, 1244 [3d Dept
2013], appeal dismissed 22 NY3d 911 [2013]; Matter of Michael
G.B. v Angela L.B., 219 AD2d 289, 294 [4th Dept 1996]). All of
these factors are components of the totality of the circumstances
for the court to consider, and also relate to the enumerated
elements under the statute.
It would be illogical to construe the statute to mean
that, in order to establish an extended disruption of custody,
the grandparent must demonstrate that the parent had no contact
with the child for 24 months. If that were the case, the statute
would be superfluous or redundant of the extraordinary
circumstances specifically enumerated in Matter of Bennett v
Jeffreys. Indeed, the level of contact between the parent and
child is relevant to several different categories of
extraordinary circumstances under that case. For example, Matter
of Bennett v Jeffreys refers to abandonment as an extraordinary
circumstance (see 40 NY2d at 546). Pursuant to Social Services
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Law § 384-b (5), abandonment occurs -- in the context of a
complete termination of parental rights -- when a parent evinces
an intent to forgo parental rights and obligations as manifested
by a failure to visit the child and communicate with the child or
guardian. This Court has held that, for purposes of determining
whether extraordinary circumstances exist to demonstrate standing
to seek custody of a child, the definition of abandonment does
not differ from the traditional definition (see Matter of Dickson
v Lascaris, 53 NY2d 204, 209 [1981]). Similarly, Matter of
Bennett v Jeffreys refers to persistent neglect as a variety of
extraordinary circumstances (see 40 NY2d at 546). Persistent
neglect requires proof that the parent "failed either to maintain
substantial, repeated and continuous contact with a child or to
plan for the child's future" (Matter of Ferguson v Skelly, 80
AD3d 903, 905 [3d Dept 2011] [emphasis added], lv denied 16 NY3d
710 [2011]; see Social Services Law § 384-b [7]). Thus, where a
parent has no significant contact with his or her child for 24
months, the avenues of persistent neglect or abandonment
presumably would be available under Matter of Bennett v Jeffreys,
even without the benefit of Domestic Relations Law § 72 (2).
In view of the foregoing, if we interpret the
definition of "extended disruption of custody" under Domestic
Relations Law § 72 (2) to mean that the parent must not have had
any contact, or at least any significant contact, with the child
for at least 24 months, then this statutory ground of
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extraordinary circumstances would essentially be eviscerated, or
at best redundant and unnecessary. This would contravene the
legislative purpose, and would be contrary to the well-
established rule that courts should not interpret a statute in a
manner that would render it meaningless (see Matter of Brown v
Wing, 93 NY2d 517, 523 [1999]; Matter of Industrial Commr. of
State of N.Y. v Five Corners Tavern, 47 NY2d 639, 646-647
[1979]). Consequently, to give meaning to the separate statutory
avenue of establishing standing, Domestic Relations Law § 72 (2)
must be available for a grandparent even if the parent has had
some contact with the child during the requisite 24-month period.
To hold otherwise would not only conflict with the Legislature's
intent, but would also deter grandparents from promoting a
relationship between the parent and the child while the child
resides with them, contrary to this state's public policy of
encouraging and strengthening parent-child relationships.5 While
courts must determine on a case-by-case basis whether the level
of contact between the parent and child precludes a finding of
extraordinary circumstances, it is sufficient to show that the
parent has permitted -- as reflected in the statutory designation
5
Here, the grandparents called the mother nearly every day
to keep her updated on the child's activities. They also brought
the mother and her daughters on family vacations, invited them to
family holiday gatherings, and relocated them twice. This
conduct, primarily initiated by the grandparents, kept the mother
in closer contact with the child. It would be incongruous to
then deny the grandparents standing based on their efforts at
facilitating that contact.
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of the particular extraordinary circumstance at issue -- an
"extended disruption of custody" (Domestic Relations Law § 72 [2]
[a] [emphasis added]).
For essentially the same reasons, a parent need not
relinquish all care and control of the child. Even if the parent
exercises some control over the child -- for example during
visitation -- a parent may still, as a general matter, have
voluntarily relinquished care and control of the child to the
grandparent to the extent that the grandparent is, in essence,
acting as a parent with primary physical custody. The key is
whether the parent makes important decisions affecting the
child's life, as opposed to merely providing routine care on
visits.
Here, the mother argues that the grandparents were only
acting with her permission when making decisions regarding the
child. She concedes that she signed three documents, each giving
the grandparents permission to make such decisions, including
medical and educational decisions, without any time limitation,
but contends that the documents prove that she retained ultimate
control over all decisions. Family Court concluded that the
documents, and the mother's conduct, showed that she relinquished
her authority and responsibility to make the decisions. The
Appellate Division, on the other hand, concluded that the
grandparents relied on the mother's permission (128 AD3d at 25).
In our view, Family Court's interpretation of the documents, and
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their implications here, is more accurate. The grandparents
obtained the documents because there was no custody order giving
the grandparents the legal right to make such decisions, although
the child was in their physical custody a majority of the time,
and they needed to be prepared for all types of situations.
Nevertheless, the mother freely signed over virtually all
decision-making rights indefinitely -- she did not limit the
permission to times when she was unavailable -- demonstrating her
intent that the grandparents "permanently assume the parental
responsibility" of caring for the child (Matter of Michael G.B.,
219 AD2d at 294).
As for the parties' conduct, the grandparents spoke
with the mother almost daily about the child. The mother claims
that they did so to seek her permission before making decisions
about the child. However, the evidence is more consistent with
Family Court's conclusion that the grandparents made all
decisions about the child and merely kept the mother informed of
the decisions that they had made or were about to make. For
example, the mother and her boyfriend testified that, at least as
early as 2011, she wanted to enroll the child in a school in the
district where she lived, rather than the district of the
grandparents' residence. The grandparents desired to keep the
child in their district, where he had always attended school.
The mother did not make any change in the child's school
enrollment until the summer of 2012, after this proceeding had
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commenced. In addition, the mother could have expressly revoked
her written permission, or specifically limited the authorization
to making medical decisions in emergency situations, but she
never did so. Instead, her conduct, and that of the
grandparents, supports Family Court's finding that "in reality
[the mother] relinquished her parental control and decisionmaking
authority in writing and in practice to the [g]randparents."
Furthermore, while there arguably may have been a
reason for the mother to refrain from seeking physical custody
during the time that she was caring for her own ailing parents,
that situation did not arise until 2006, several years after the
child began living with the grandparents. Additionally, although
one of the mother's parents died and the other went into a
nursing home in 2009, the mother allowed the grandparents to
continue raising the child thereafter and she did not seek
physical custody of him until 2012. No reasonable explanation
was provided for her failure to attempt to gain physical custody
after 2009 (see Matter of Michaellica Lee W., 106 AD3d 639, 639-
640 [1st Dept 2013]).6
6
For purposes of determining extraordinary circumstances,
this situation can be distinguished from those in which a parent
has a compelling reason to allow a nonparent to assume custody
for a more limited and defined period of time. For example, no
extraordinary circumstances were found where a father asked a
grandfather to assume custody while the father "got [his] life
together," after which the father completed substance abuse
treatment, anger management, and parenting classes and obtained
steady employment -- all while continuously attempting to
maintain contact with the children -- before he tried to regain
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In sum, the evidence more closely comports with Family
Court's finding that the mother voluntarily relinquished care and
control of the child for more than 24 months, even though she had
regular contact and visitation with him (see Matter of Curless,
125 AD3d at 1196; Matter of Battisti v Battisti, 121 AD3d 1196,
1197-1198 [3d Dept 2014]; see also Matter of Marcus CC., 107 AD3d
at 1244). The mother allowed the grandparents to assume control
over, and responsibility for the care of, the child while he
resided with them for a prolonged period of years, during which
she assumed the role of a noncustodial parent in virtually every
way (see Matter of Traci M.S. v Darlene C., 37 AD3d 1083, 1084
[4th Dept 2007]). Where, as here, the mother has effectively
transferred custody of the child to the grandparents for a
prolonged period of time, the circumstances rise to the level of
extraordinary, as required under our law to confer standing upon
the grandparents to petition the courts to formally obtain legal
custody.
We reiterate that the conferral of standing, through
the demonstration of extraordinary circumstances, is only the
custody (see Matter of Ferguson v Skelly, 80 AD3d 903, 905 [3d
Dept 2011], lv denied 16 NY3d 710 [2011]). Similarly, it may be
necessary for a single parent who is enlisted in the military to
cede custody while deployed. In such situations, a parent can
enter into an agreement memorializing a period of temporary
custody, or can include limiting language in written
authorizations -- unlike the authorizations here, which
explicitly stated that they were "open and ongoing" and had "no
expiration date."
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first step of the inquiry where a nonparent seeks custody against
a parent. The second step addresses the best interest of the
child. Here, Family Court found that it was in the child's best
interest to remain in the primary physical custody of the
grandparents. However, inasmuch as the Appellate Division did
not reach that question, it must do so on remittal.
In conclusion, the grandparents established their
standing to seek custody of the child by demonstrating
extraordinary circumstances, namely an extended disruption of the
mother's custody, in accordance with Matter of Bennett v Jeffreys
and Domestic Relations Law § 72 (2). Accordingly, the Appellate
Division order should be reversed, without costs, and the matter
remitted to that court for further proceedings in accordance with
this opinion.
* * * * * * * * * * * * * * * * *
Order reversed, without costs, and matter remitted to the
Appellate Division, Fourth Department, for further proceedings in
accordance with the opinion herein. Opinion by Judge Stein.
Chief Judge Lippman and Judges Pigott, Rivera, Abdus-Salaam and
Fahey concur.
Decided December 16, 2015
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