It is essential a non-parent who wants custody establish the actions of the biological parents have reached a state of extraordinary circumstances. Showing the non-parent has bonded with the children involved as well as showing they have assumed the financial and emotional role of parental obligations is important. They must also show how the child is dependent as well as psychologically bonded to them. This will help a court to grant them standing in a custody case.
When a non-parent is given custody or guardianship of a child, a New York court must determine if extraordinary circumstances exist. Once this has been proven, a non-parent could have “standing.” This means a person has a legal right to file a lawsuit or petition for custody based on the children’s home situation. Once a non-parent is determined to have standing, they can proceed to court and make their case for guardianship as well as custody.
Best Interest Of The Child
The legal standard for determining custody or guardianship is what is going to be in the best interest of the child. The rights of a person to be a parent is considered a fundamental right in the state of New York. This right is not considered absolute. When it has been proven that extraordinary circumstances do exist, the standard of what is in the best interest of the child will be applied to determine custody or guardianship.
Best Interests Of This Child Factors
When trying to establish this legal standard of extraordinary circumstances, a number of factors will be taken into consideration.
STABILITY – A parent could be absent for a long period of time and leave the child with a non-parent during this time. A court would consider the stability associated with keeping a child in their current situation rather than giving them back to the biological parent.
HOME ENVIRONMENT CONDITIONS – A New York court will not permit a child to live in a household that is dangerous or unhealthy. Should the home be in an unsafe state of disrepair or a place where dangerous items are easily accessible, a parent with a new partner that is violent and more. It will all be taken into consideration. This will influence the determination of custody.
MENTAL AND PHYSICAL HEALTH OF PARENTS – It is possible for one or both parents to experience a serious debilitating injury or illness. This could significantly impact their ability to care for their children. It’s also possible for one or both parents to have an untreated mental illness, emotional instability as well personality disorders and more. All this will be taken into consideration when determining extraordinary circumstances.
SPOUSAL ABUSE – An important factor is if there is evidence that one parent committed or continues to commit domestic violence against another parent or the children. The parent who has been determined to be committing acts of abuse will usually not be considered to receive custody.
COURT’S OBSERVATION OF PARENTS – Another consideration for a court is the behavior of parents. A parent who is unprepared, impolite and argumentative in court will harm their chances of gaining custody. Another factor is a parent stating they will encourage the child to develop a relationship with the other parent and more.
Changing Custody Order
A custody order can be given that determines visitation, support and more for each parent. It can also be given to a non-parent if they have been granted custody. It is possible for a custody order to be changed when extraordinary circumstances are proven. In some situations, the non-parent is given equal rights with the biological parents when extraordinary circumstances are established.
A non-parent trying to prove extraordinary circumstances will not be permitted to ask for documents or take depositions before the trial. They can obtain a list of witnesses, mental health reports, and records. If there is a drug or alcohol issue, the biological parents can be required to submit to a drug or alcohol test. In some cases, when the evidence is compelling, a court may order New York Child Protective services to begin an investigation.
Proving extraordinary circumstances, and using that as a basis for custody in New York, is a complicated process. An experienced an attorney will know how to handle this situation and achieve the desired result. There are no firmly established rules, and a court has a substantial amount of discretion on how each individual case should be handled.
When extraordinary circumstances are present in a home with children, something must be done. The state of New York has provided a way for non-parents to prove circumstances in a home are not in the best interest of the children who reside there. They have an opportunity to show how they can provide the best possible home for children being affected by extraordinary circumstances.