IN RE: MATTHEW E. (2007)

In this proceeding pursuant to Family Court Act article 6, the Law Guardian appeals from an order granting the petitions of Matthew E. seeking custody of his grandchild and dismissing the custody petitions of the child's foster parents.   We agree with the Law Guardian that Family Court erred in granting the grandfather's petitions for custody of the child and erred in dismissing the foster parents' petitions for custody with prejudice, and we therefore modify the order accordingly.

 With respect to the grandfather's petitions, we conclude that the court erred in failing to make an initial determination with respect to the existence of extraordinary circumstances before reaching the issue of the best interests of the child (see Matter of Gary G. v. Roslyn P., 248 A.D.2d 980, 981, 670 N.Y.S.2d 270;  Matter of Michael G.B. v. Angela L.B., 219 A.D.2d 289, 291, 642 N.Y.S.2d 452).   We further conclude that, although custody determinations generally are accorded great deference (see Matter of Carl G. v. Oneida County Dept. of Social Servs., 24 A.D.3d 1274, 1275, 807 N.Y.S.2d 505), the court in this case abused its discretion in determining that it is in the child's best interests to award custody to the grandfather (see generally Matter of Donald W., 17 A.D.3d 728, 729-730, 793 N.Y.S.2d 217, lv. denied 5 N.Y.3d 705, 801 N.Y.S.2d 251, 834 N.E.2d 1261;  Matter of Tiffany Malika B., 215 A.D.2d 200, 201, 626 N.Y.S.2d 184, lv. denied 86 N.Y.2d 707, 632 N.Y.S.2d 501, 656 N.E.2d 600).   A nonparent relative of the child does not have “a greater right to custody” than the child's foster parents (Matter of Gordon B.B., 30 A.D.3d 1005, 1006, 818 N.Y.S.2d 692;  see also Matter of Peter L., 59 N.Y.2d 513, 520, 466 N.Y.S.2d 251, 453 N.E.2d 480;  Matter of Violetta K. v. Mary K., 306 A.D.2d 480, 481, 761 N.Y.S.2d 514).

 Here, the child was placed in foster care when she was approximately three months old, after she had suffered fractures to her legs, wrists, ribs, and skull, and a lacerated liver while she was being cared for by her parents.   The child entered foster care because the grandfather refused to take custody of the child, and he had little contact with her thereafter with the exception of one hour per week of supervised visitation.   The grandfather did not petition for custody until five to six months later, when it became evident that his daughter, the child's mother, would not regain custody of the child.   Although the court referred to the best interests standard in its determination, the record reflects that the court in fact applied a lesser standard that impermissibly favored the grandfather based simply upon his biological connection to the child and his suitability as a custodian, rather than upon the requisite determination that the placement was in the child's best interests (see generally Gordon B.B., 30 A.D.3d at 1006, 818 N.Y.S.2d 692).

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously modified on the law by dismissing the petitions of petitioner Matthew E. and by providing that the petitions of petitioners Michael O. and Yvonne O. are dismissed without prejudice and as modified the order is affirmed without costs.

MEMORANDUM: