By Sari M. Friedman, General Counsel
Fathers' Rights Association (NYS & Long Island)
In 2003, the New York State Legislature amended Domestic Relations Law
Section 72, originally enacted to provide
grandparents with the right to seek
visitation rights with their grandchildren. The new 2003 law further assists grandparents
who want to seek
custody of their grandchildren.
A parent's right to child custody has long been recognized by the Supreme
Court of the United States as a liberty protected by the U.S. Constitution.
Stanley v. Illinois, 405 US. 645; Meyer v. Nebraska, 262 U.S. 390.
In 1976, the New York State Court of Appeals held that when a custody dispute
between a parent and a non-parent arose, the parent's superior right
to custody could be disturbed only if extraordinary circumstances are
proven and if it can be shown that it is in the child's best interest
for a non-parent to have custody: ;Bennet v. Jeffreys, 40 N.Y. 2d 543,
387 N.Y.S. 2d 821 (1976) . Examples of extraordinary circumstances are
when a parent is unfit, where there is persistent neglect of a child by
a parent, or where the parent abandons the child.
The Bennet case involved a 15 year old unwed mother who gave birth to her
child while living with her parents. Under pressure from her mother, the
girl reluctantly transferred the child to the care of Ms.Jeffreys, a former
classmate of her mother. Ms. Jeffreys failed to adopt the child because
she couldn't afford to.
When the natural mother was 23 and about to graduate from college, she
brought a proceeding in Family Court to obtain custody of her child. But
the Family Court dismissed the petition, directing that custody of the
child remain with Ms. Jeffreys. The natural mother was awarded visitation rights.
The Appellate Division reversed the decision of the Family Court and directed
Ms Jeffreys to return custody to the natural mother because the natural
mother had not surrendered nor abandoned the child, and was not unfit.
But the Court of Appeals then reversed the Appellate Division, finding
that where "extraordinary circumstances" exist such as an extended
separation of the child from his or her biological parents, the best interests
of the child were superior to the custody rights of a biological parent.
Thus, Bennet v. Jeffreys created a "two pronged" test for a
non-parent seeking custody, i.e. proving extraordinary circumstances and
showing it is in the child's best interest for the applicant to be
The New 2003 Law
The recent amendments to Section 72 of the Domestic Relations Law recognize
the special legal relationship between New York grandparents and their
grandchildren and that grandparents are the natural substitute guardians
for their grandchildren.
Although the statute does not alter the "extraordinary circumstances"
test set forth by the Court of Appeals in Bennett v.Jeffreys, it does
create an additional "extraordinary circumstance", i.e. an "extended
disruption of custody."
The statute defines this as including, but not limited to "a prolonged
separation of the respondent parent and the child for at least twenty-four
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. Nevertheless, the Court may find
that extraordinary circumstances exist even if the prolonged separation
lasted for less than twenty-four months."
The Current Law's Effect on Grandparents
This legislation is too new to have much interpretation by the Appellate
Courts of this state. Because the law is still being tested, it makes
sense to consult with an attorney who is highly experienced in this area
of the law. It can make the difference between success and failure.
It is clear, however, that grandparents need no longer fear that children
in their care for years, will be returned to unstable parents. Grandparents
need no longer fear emotional and financial blackmail at the hands of
such parents who use their superior rights over the children as a threat.