TAMIKA v. DENISE (2007)

 We agree with petitioner, the child's biological mother, that Family Court erred in dismissing her petition seeking sole custody of the child without conducting a hearing.   The child was residing with respondent, her paternal grandmother, pursuant to a consent order, and it is well established that “[e]xtraordinary circumstances must be shown where, as here, the prior order granting custody of the child to [a nonparent] was made upon consent of the parties” (Matter of Katherine D. v. Lawrence D., 32 A.D.3d 1350, 1351, 822 N.Y.S.2d 349, lv. denied 7 N.Y.3d 717, 827 N.Y.S.2d 688, 860 N.E.2d 990;  see Matter of Guinta v. Doxtator, 20 A.D.3d 47, 53, 794 N.Y.S.2d 516;  Matter of Gary G. v. Roslyn P., 248 A.D.2d 980, 981, 670 N.Y.S.2d 270).   Because there has been no prior judicial determination of extraordinary circumstances in this case, the court erred in dismissing the petition without conducting a hearing to determine whether such circumstances exist to deprive petitioner of her superior right to custody (see Gary G., 248 A.D.2d at 981, 670 N.Y.S.2d 270) and, if so, whether a change in custody is in the child's best interests (see Katherine D., 32 A.D.3d at 1351, 822 N.Y.S.2d 349).   We therefore reverse the order, reinstate the petition and remit the matter to Family Court for a hearing consistent with our decision.

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously reversed on the law without costs, the petition is reinstated and the matter is remitted to Family Court, Erie County, for a hearing.

MEMORANDUM: