Opinion
2014-07355, 2014-07444 (Docket No. V-11505-13)
05-20-2015
In the Matter of Jann PACZKOWSKI, appellant, v. Jamie PACZKOWSKI, respondent.
William A. Sheeckutz, East Meadow, N.Y., for appellant. Kent V. Moston, Hempstead, N.Y. (Jeremy L. Goldberg of counsel), for respondent. Dennis G. Monahan, Nesconset, N.Y., attorney for the child.
William A. Sheeckutz, East Meadow, N.Y., for appellant.
Kent V. Moston, Hempstead, N.Y. (Jeremy L. Goldberg of counsel), for respondent.
Dennis G. Monahan, Nesconset, N.Y., attorney for the child.
RANDALL T. ENG, P.J., L. PRISCILLA HALL, JEFFREY A. COHEN, and BETSY BARROS, JJ.
Opinion Appeals from (1) a decision of the Family Court, Nassau County (Edmund M. Dane, J.), dated June 30, 2014, and (2) an order of that court, dated July 1, 2014. The order dismissed the petition for joint custody of the subject child.
ORDERED that the appeal from the decision is dismissed, without costs or disbursements, as no appeal lies from a decision (see Schicchi v. J.A. Green Constr. Corp., 100 A.D.2d 509, 472 N.Y.S.2d 718 ); and it is further,
ORDERED that the order is affirmed without costs or disbursements.
The Family Court properly dismissed the petition for lack of standing. A nonparent may have standing to seek to displace a parent's right to custody and control of his or her child, but only upon a showing that “the parent has relinquished that right due to surrender, abandonment, persistent neglect, unfitness, or other extraordinary circumstances” (Matter of Bailey v. Carr, 125 A.D.3d 853, 4 N.Y.S.3d 121 ; see Matter of Bennett v. Jeffreys, 40 N.Y.2d 543, 548, 387 N.Y.S.2d 821, 356 N.E.2d 277 ; Matter of Diana B. v. Lorry B., 111 A.D.3d 927, 976 N.Y.S.2d 115 ). Here, the petitioner, who is neither an adoptive parent nor a biological parent of the subject child, failed to allege the existence of extraordinary circumstances that would establish her standing to seek custody (see Matter of A.F. v. K.H., 121 A.D.3d 683, 684, 993 N.Y.S.2d 370 ; Matter of Behrens v. Rimland, 32 A.D.3d 929, 931, 822 N.Y.S.2d 285 ; Matter of Marquis B. v. Alexis H., 110 A.D.3d 790, 790–791, 973 N.Y.S.2d 264 ). Contrary to the petitioner's contention, Family Court Act § 417 and Domestic Relations Law § 24 do not provide her with standing as a parent, since the presumption of legitimacy they create is one of a biological relationship, not of legal status (see Family Ct. Act § 418[a] ; Debra H. v. Janice R., 14 N.Y.3d 576, 593, 904 N.Y.S.2d 263, 930 N.E.2d 184 ; Matter of Findlay, 253 N.Y. 1, 7, 170 N.E. 471 ; Matter of Marilene S. v. David H., 63 A.D.3d 949, 950, 882 N.Y.S.2d 155 ), and, as the nongestational spouse in a same-sex marriage, there is no possibility that she is the child's biological parent (see Matter of Q.M. v. B.C., 46 Misc.3d 594, 599, 995 N.Y.S.2d 470 ; Wendy G–M. v. Erin G–M., 45 Misc.3d 574, 578, 985 N.Y.S.2d 845 ).
The petitioner's remaining contentions are either not properly before us, based on matter dehors the record, or without merit.