A biological parent has a superior right to custody over the rights of a non-parent.  The State may not deprive a parent of custody absent surrender, abandonment, persisting neglect, unfitness or other extraordinary circumstances.  The non-parent has the burden of proving extraordinary circumstances.  The existence of a prior consent order awarding custody to the non-parent is not enough to demonstrate extraordinary circumstances.           

In the case of In re Mercado, 2009 NY Slip Op 05718, a mother suffered from postpartum depression and checked herself into a mental health facility.  The child’s maternal grandmother filed a petition in Family Court for custody of the child.  A final order was granted on stipulation of the parties, awarding the grandmother sole custody of the child, with visitation to the mother at the grandmother’s discretion. 

Thereafter, the mother moved, became engaged and had another child.  The mother sought to modify the custody order, requesting sole custody of the child.   The Family Court dismissed the mother’s petition.

In this case, the Family Court failed to determine whether the grandmother had demonstrated extraordinary circumstances.  The Court incorrectly placed the burden on the mother to demonstrate a change in circumstances since the final order was issued.  The matter was remanded to Family Court for further proceedings.

This entry was posted on Wednesday, October 7th, 2009 at 8:00 am and is filed under Custody and Visitation. You can follow any responses to this entry through the RSS 2.0 feed. Both comments and pings are currently closed.