IN RE: Lance McGRAW (1999)

In a custody proceeding pursuant to Family Court Act article 6, the mother appeals, by permission, from an order of the Family Court, Orange County (Bivona, J.), dated March 20, 1997, which denied her motion to dismiss the proceeding.

ORDERED that the order is reversed, on the law, without costs or disbursements, the motion is granted, the petition is denied, and the proceeding is dismissed.

 The law is clear that in the absence of surrender, abandonment, persistent neglect, unfitness, or other extraordinary circumstances, a biological parent cannot be denied custody in favor of a nonparent (see, Matter of Bennett v. Jeffreys, 40 N.Y.2d 543, 387 N.Y.S.2d 821, 356 N.E.2d 277;  see also, Matter of Michael B. [Marvin B.], 80 N.Y.2d 299, 309, 590 N.Y.S.2d 60, 604 N.E.2d 122;  Matter of Michael G.B. v. Angela L.B., 219 A.D.2d 289, 291, 642 N.Y.S.2d 452;  Matter of Commr. of Social Servs. of City of N.Y. [Tyrique P.], 216 A.D.2d 387, 629 N.Y.S.2d 47).   The burden of proving that extraordinary circumstances exist is on the party seeking to deprive the biological parent of custody (see, Matter of Michael G.B. v.Angela L.B., supra;  Matter of Commr. of Social Servs. of City of N.Y. [Tyrique P.], supra).

 Here, there is no allegation of surrender, abandonment, persistent neglect, unfitness, or any other extraordinary circumstances which would warrant interference with the mother's right to custody.   It is not enough for the petitioner, who was married to the mother but is not the child's biological parent, to claim that he would do a better job of raising the child (see, Wolfer v. Dame, 207 A.D.2d 898, 616 N.Y.S.2d 996;  Matter of Male Infant L., 61 N.Y.2d 420, 427, 474 N.Y.S.2d 447, 462 N.E.2d 1165;  Matter of Michael G.B. v. Angela L.B., supra, at 291, 642 N.Y.S.2d 452;  c.f., Jean Maby H. v. Joseph H., 246 A.D.2d 282, 676 N.Y.S.2d 677).   Accordingly, the Family Court erred in denying the mother's motion to dismiss the custody petition.

MEMORANDUM BY THE COURT.