Pursuant to Domestic Relations Law § 72(2)(a), a grandparent has standing to seek custody of a child where the grandparent demonstrates the existence of extraordinary circumstances, such as surrender, abandonment, persisting neglect, unfitness, and unfortunate or involuntary disruption of custody over an extended period of time (Matter of Bennett v. Jeffreys, 40 N.Y.2d 543, 546, 387 N.Y.S.2d 821, 356 N.E.2d 277).

An extended disruption of custody between the child and the parent “shall constitute an extraordinary circumstance (Domestic Relations Law § 72[2][a]). The statute defines extended disruption of custody’ as including, but not limited to, ‘a prolonged separation of the respondent 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.

However, the statute does not preclude a court from finding the existence of extraordinary circumstances even if the prolonged separation lasted less than 24 months. Moreover, lack of contact is not a separate element under the statute, 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’. Where extraordinary circumstances are present, the court must then consider the best interests of the child in awarding custody.

Here, the Family Court’s determination that the maternal grandmother demonstrated extraordinary circumstances has a sound and substantial basis in the record. The maternal grandmother’s unrebutted testimony established a prolonged separation of the child from the father for at least 24 continuous months during which the father voluntarily relinquished care and control of the child and the child resided in the household of the maternal grandmother.

The maternal grandmother established that during the period in question, she provided for the child’s physical, emotional, medical, educational, and financial needs, and made all decisions regarding his care, in essence acting as a parent of the child. Contrary to the father’s contention, although there was a period of time when custody of the child was returned to the mother for a few months in October 2016, that does not change the reality of the family’s situation, which was that during that time the mother and the child continued to reside with the maternal grandmother, who continued to care for the child. Furthermore, the Family Court’s determination that awarding custody of the child to the maternal grandmother was in the child’s best interest has a sound and substantial basis in the record.

Ferrson v. Dixon, – NYS3d – , 2023 WL 2994921 (2nd Dep’t. 2023)

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