Opinion
740-, M–3850 Docket No. V–02766–19 Case No. 2022–00258
11-09-2023
In the Matter of LASHAWN K., Petitioner–Appellant, v. ADMINISTRATION FOR CHILDREN'S SERVICES et al., Respondents–Respondents. Empire Justice Center and the LGBTQ Advocacy Clinic at Brooklyn Law School, Amicis Curiae.
New York Legal Assistance Group, New York (Jacquelin Hacker of counsel), for appellant. Neighborhood Defender Service of Harlem, New York (Michael Weinstein of counsel), for respondents. Karen Freedman, Lawyers for Children, Inc., New York (Shirim Nothenberg of counsel), and Locke Lord LLP, New York (Ira G. Greenberg of counsel), attorney for the child. LGBTQ Advocacy Clinic, BLS Legal Services, Brooklyn Law School, Brooklyn (Susan Hazeldean of counsel), for amicus curiae.
New York Legal Assistance Group, New York (Jacquelin Hacker of counsel), for appellant.
Neighborhood Defender Service of Harlem, New York (Michael Weinstein of counsel), for respondents.
Karen Freedman, Lawyers for Children, Inc., New York (Shirim Nothenberg of counsel), and Locke Lord LLP, New York (Ira G. Greenberg of counsel), attorney for the child.
LGBTQ Advocacy Clinic, BLS Legal Services, Brooklyn Law School, Brooklyn (Susan Hazeldean of counsel), for amicus curiae.
Manzanet–Daniels, J.P., Gesmer, Gonza´lez, Kennedy, O'Neill Levy, JJ.
Order, Family Court, New York County (Jessica Brenes, Ref.), entered on or about December 14, 2021, which, after a hearing, dismissed Lashawn K.’s petition for custody and visitation of the subject child with prejudice for lack of standing, unanimously reversed, on the law, without costs, and petitioner's custody and visitation petitions remanded for a further hearing on extraordinary circumstances.
As a prerequisite to seeking custody or visitation with a child, a party must establish standing. The party may establish standing (1) as a parent pursuant to Domestic Relations Law § 70 ; (2) as a sibling for visitation pursuant to Domestic Relations Law § 71 ; (3) as a grandparent for visitation or custody pursuant to Domestic Relations Law § 72 ; or (4) by showing extraordinary circumstances pursuant to Matter of Bennett v. Jeffreys , 40 N.Y.2d 543, 387 N.Y.S.2d 821, 356 N.E.2d 277 (1976) (see Matter of Tomeka N.H. v. Jesus R., 183 A.D.3d 106, 122 N.Y.S.3d 461 [4th Dept. 2020], lv denied 36 N.Y.3d 909, 2021 WL 1181812 [2021] ).
In Matter of Brooke S.B. v. Elizabeth A.C.C. , 28 N.Y.3d 1, 39 N.Y.S.3d 89, 61 N.E.3d 488 (2016), the Court of Appeals expanded the definition of the word "parent" to include a nonbiological, nonadoptive parent who has demonstrated by clear and convincing evidence that "the parties agreed to conceive a child and to raise the child together" ( id. at 14, 39 N.Y.S.3d 89, 61 N.E.3d 488 ). Family Court determined after a hearing that petitioner failed to establish the existence of an enforceable pre-conception agreement to conceive and co-parent the subject child with the child's biological mother. The child's biological mother unexpectedly died only months after the child was born and before she and petitioner were to be married.
However, Family Court erred in dismissing petitioner's custody and visitation petitions without permitting petitioner the opportunity to present evidence supporting her argument that she had standing based on extraordinary circumstances. Indeed, the Referee stated on the record during the hearing that she agreed with the biological father's position that petitioner could only present extraordinary circumstances evidence after she established that she had standing. This is an error of law, as extraordinary circumstances is one of several bases for standing to seek custody and visitation.
Extraordinary circumstances may be found where there has been "a judicial finding of surrender, abandonment, unfitness, persistent neglect, unfortunate or involuntary extended disruption of custody, or other equivalent but rare extraordinary circumstance which would drastically affect the welfare of the child" ( Matter of Bennett v. Jeffreys, 40 N.Y.2d at 549, 387 N.Y.S.2d 821, 356 N.E.2d 277 ; see also Matter of Bisoh C. v. Valentine S., 185 A.D.3d 409, 124 N.Y.S.3d 778 [1st Dept. 2020] ; Matter of Virgilio M. v. Jasmin R., 172 A.D.3d 430, 99 N.Y.S.3d 304 [1st Dept. 2019] ; Matter of Kathy C. v. Alonzo E., 157 A.D.3d 503, 69 N.Y.S.3d 19 [1st Dept. 2018] ; Matter of Jamal S. v. Kenneth S., 143 A.D.3d 555, 39 N.Y.S.3d 28 [1st Dept. 2016] ).
We therefore reverse and remand the case to Family Court for a further hearing on whether petitioner can establish standing based on extraordinary circumstances.
Motion for leave to file amicus brief, granted.