IN RE: Lalisa CRAIG (2026)

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs, the petition of petitioner-respondent LaLisa Craig is reinstated, and the matter is remitted to Family Court, Wayne County, for further proceedings in accordance with the following memorandum: In this proceeding pursuant to Family Court Act article 6, petitioner-respondent maternal grandmother and respondent-petitioner father filed petitions seeking custody of the father's twin girls after the death of their mother. Family Court effectively dismissed the grandmother's petition upon determining that she failed to establish extraordinary circumstances and granted the father custody of the children, with visitation to the grandmother. The grandmother appeals, and we reverse.

Initially, we agree with the grandmother that a subsequent order entered on consent that granted custody of the children to the grandmother does not render this appeal moot. A consent order does not by itself constitute a judicial finding or an admission of extraordinary circumstances (see Matter of Sevilla v. Torres, 235 A.D.3d 1303, 1304, 226 N.Y.S.3d 814 [4th Dept. 2025]; Matter of Byler v. Byler, 185 A.D.3d 1403, 1404, 128 N.Y.S.3d 385 [4th Dept. 2020]; Matter of Driscoll v. Mack, 183 A.D.3d 1229, 1230, 121 N.Y.S.3d 706 [4th Dept. 2020], lv denied 35 N.Y.3d 910, 2020 WL 5047496 [2020]). Thus, the grandmother's challenge to the court's finding of no extraordinary circumstances is not affected by the subsequent order entered on consent (see generally Matter of Gorski v. Phalen [Appeal No. 2], 187 A.D.3d 1670, 1671, 133 N.Y.S.3d 714 [4th Dept. 2020]; Matter of Van Dyke v. Cole, 121 A.D.3d 1584, 1585, 994 N.Y.S.2d 219 [4th Dept. 2014]).

It is well settled that, to have standing to seek custody, a nonparent must demonstrate “extraordinary circumstances, illustratively, 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 [1976]; see Matter of Adams v. John, 227 A.D.3d 1395, 1397, 211 N.Y.S.3d 644 [4th Dept. 2024]). If extraordinary circumstances exist, “the disposition of custody is influenced or controlled by what is in the best interest of the child” (Bennett, 40 N.Y.2d at 544, 387 N.Y.S.2d 821, 356 N.E.2d 277). In other words, “[t]he nonparent has the burden of proving that extraordinary circumstances exist, and until such circumstances are shown, the court does not reach the issue of the best interests of the child” (Adams, 227 A.D.3d at 1397, 211 N.Y.S.3d 644 [internal quotation marks omitted]).

We agree with the grandmother that she met her burden of establishing the existence of extraordinary circumstances. The extraordinary circumstances analysis “must consider the cumulative effect of all issues present in a given case and not view each factor in isolation” (Matter of Byler v. Byler, 207 A.D.3d 1072, 1074, 170 N.Y.S.3d 459 [4th Dept. 2022], lv denied 39 N.Y.3d 901, 2022 WL 11448472 [2022] [internal quotation marks omitted]; see Matter of Lachenauer v. Lachenauer-Myers, 236 A.D.3d 1309, 1309-1310, 228 N.Y.S.3d 811 [4th Dept. 2025]).

The evidence here established that, in 2018, the father was arrested and incarcerated until 2022. During that time, the children resided with the mother in the grandmother's home until October 2021, when the grandmother moved out. The father never saw the children while he was incarcerated, rarely spoke with them, and never sent them cards, letters, or gifts. When the father was released from incarceration, the mother asked him to take custody of the children, which he did starting in July or August 2022; the grandmother visited with the children on the weekends. The mother died less than a year later, and the children lived with the grandmother during the summer of 2023. In September 2023, the parties filed petitions seeking custody of the children, and the court granted the grandmother temporary custody of the children, with the father having visitation. From that time until the conclusion of the hearing in July 2024, the father did not visit with the children and rarely communicated with them.

We conclude that the cumulative effect of the father's extended incarceration, his failure to maintain contact with the children during that time, the children's resulting bond with the grandmother, and the father's failure to maintain contact with the children during the pendency of the hearing, is sufficient to establish extraordinary circumstances (see Matter of Robert XX. v. Susan YY., 202 A.D.3d 1389, 1390, 164 N.Y.S.3d 257 [3d Dept. 2022], lv denied 38 N.Y.3d 907, 2022 WL 1574614 [2022]; Matter of Ciriaco v. Hall, 191 A.D.3d 872, 873-874, 138 N.Y.S.3d 897 [2d Dept. 2021]; Matter of Moynihan v. Cohen, 181 A.D.3d 965, 967, 122 N.Y.S.3d 642 [2d Dept. 2020]). We therefore reverse the order, reinstate the grandmother's petition, and remit the matter to Family Court to make a determination regarding the best interests of the children, following an additional hearing if necessary.