IN RE: James K. BARRETT (2026)

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum: In this proceeding pursuant to article 6 of the Family Court Act, respondent-petitioner maternal grandmother (grandmother) of the three subject children and the Attorney for the Child (AFC) for the youngest child appeal from an order that, among other things, dismissed the grandmother's custody petitions and awarded joint custody of the two younger children to respondent mother and petitioner-respondent father and sole custody of the oldest child to the mother. Family Court dismissed the grandmother's petitions on the ground that she failed to establish the existence of extraordinary circumstances.

Contrary to the contentions of the grandmother and the AFC for the youngest child, we conclude that there is a sound and substantial basis in the record to support the court's determination.

“[A]s between a parent and a nonparent, the parent has a superior right to custody that cannot be denied unless the nonparent establishes that the parent has relinquished that right because of surrender, abandonment, persisting neglect, unfitness or other like extraordinary circumstances ․ The nonparent has the burden of proving that extraordinary circumstances exist” (Matter of Orlowski v Zwack, 147 AD3d 1445, 1446 [4th Dept 2017] [internal quotation marks omitted]; see Matter of Cross v Cross, 235 AD3d 1264, 1265 [4th Dept 2025], lv denied 44 NY3d 902 [2025]; see generally Matter of Bennett v Jeffreys, 40 NY2d 543, 545-549 [1976]).

“Examples of extraordinary circumstances include ‘prolonged separation, disruption of custody for a prolonged period of time and attachment of the child to the custodian ․, sibling separation ․, psychological bonding of the child to the custodian and potential harm to the child ․, the biological parent's abdication of parental rights and responsibilities ․ and the child's poor relationship with the biological parent’ ” (Cross, 235 AD3d at 1265; see Matter of Byler v Byler, 207 AD3d 1072, 1073 [4th Dept 2022], lv denied 39 NY3d 901 [2022]; Matter of Hilkert v Parsons-O’Dell, 187 AD3d 1675, 1676 [4th Dept 2020], lv denied 36 NY3d 905 [2021]). Only “[i]f extraordinary circumstances are established such that the nonparent has standing to seek custody” does the court “make an award of custody based on the best interest of the child” (Matter of Suarez v Williams, 26 NY3d 440, 446 [2015]). “A finding of extraordinary circumstances is rare, and the circumstances must be such that they ‘drastically affect the welfare of the child’ ” (Matter of Jenny L.S. v Nicole M., 39 AD3d 1215, 1215 [4th Dept 2007], lv denied 9 NY3d 801 [2007], quoting Bennett, 40 NY2d at 549). “Such circumstances are not established by a mere showing that the nonparent ‘could do a better job of raising the child’ ” (Matter of Adams v John, 227 AD3d 1395, 1397 [4th Dept 2024], quoting Matter of Corey L v Martin L, 45 NY2d 383, 391 [1978]).

Domestic Relations Law § 72 (2) (a) provides that “[a]n extended disruption of custody ․ shall constitute an extraordinary circumstance” for grandparents who seek custody of grandchildren for whom they have provided care, and “extended disruption of custody” is defined to include “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” (§ 72 [2] [b]; see Matter of Tuttle v Worthington [appeal No. 2], 219 AD3d 1142, 1143-1144 [4th Dept 2023]).

Here, inasmuch as the children had not resided with the grandmother for at least 24 continuous months, the grandmother did not establish an “extended disruption of custody” within the meaning of Domestic Relations Law § 72 (2). Although that does not preclude a finding of extraordinary circumstances on another ground (see § 72 [2] [b]), we conclude that the court properly determined that the grandmother failed to meet her burden of establishing the existence of extraordinary circumstances.

We first conclude that the grandmother has not established that the mother relinquished her right to custody because of extraordinary circumstances. The AFC for the youngest child correctly contends that the court misinterpreted certain child protective services records, by treating a report of abuse or maltreatment of the youngest child as unfounded, when the report was, in fact, indicated. Nevertheless, we conclude, under the circumstances of this case, that the single indicated report of abuse or maltreatment does not constitute extraordinary circumstances, especially inasmuch as no neglect or abuse proceeding was ever commenced against the mother in Family Court (see Matter of Ramos v Ramos, 75 AD3d 1008, 1012 [3d Dept 2010]; cf. Matter of Adam M. [Susan M.], 195 AD3d 1560, 1562 [4th Dept 2021]).

With respect to the father, the grandmother also failed to establish the existence of extraordinary circumstances. The evidence at the hearing established that the father had been out of work for several months, had a misdemeanor conviction, and had not lived alone with the children at any time, but none of those factors constitutes extraordinary circumstances to confer standing on the grandmother to seek custody of the children. The grandmother and the AFC for the youngest child contend that the father abdicated his parental responsibilities. We reject that contention. The father continued a relationship with the mother while she had care of the children and was not a stranger to the children, with whom he maintained consistent contact. Moreover, he sought custody of the children almost immediately after learning that they had been placed in the grandmother's care.

In light of our determination, we do not address the contentions of the grandmother concerning the best interests of the children (see Adams, 227 AD3d at 1397). We have reviewed the remaining contentions of the AFC for the youngest child and conclude that they are without merit. Finally, we note that the father did not cross-appeal from the order and has thus abandoned his prior request for custody of the oldest child (see generally Bennett v McGorry, 34 AD3d 1290, 1291 [4th Dept 2006]).