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Non-parent custody: Courts may consider third parties in certain situations

New York law recognizes that biological parents have a superior right to raise their children. However, in cases where there are extraordinary circumstances, a court may consider a custody petition filed by a third party. Our recent article focused on grandparent’s rights. This article focuses on the rights of other third parties, such as friends, neighbors or other relatives.

Extraordinary circumstances may include situations where a parent loses custody, is unfit or unwilling to care for the child, or dies. The Court of Appeals, the highest court in New York State, weighed in on the issue in Bennett v. Jeffreys, in which the Court recognized that there are instances created by extraordinary circumstances—“illustratively, surrender, abandonment, persisting neglect, unfitness, and unfortunate or involuntary disruption of custody over an extended period of time”—under which a third party may have standing to petition for custody (Bennett v. Jeffreys, 40 N.Y.2d 543 (1976)).

Establishing custody of a non-biological child is a two-prong process.  First, there must be a showing of extraordinary circumstances. Extraordinary circumstances is a threshold issue, and until that threshold has been satisfied, a court cannot turn to the second prong of the analysis, namely whether it is in the child’s best interest for a third-party to have custody.

The burden of demonstrating the existence of extraordinary circumstances is on the third party filing for custody.

Any person can file a third-party custody proceeding, but third-party custody petitions are most commonly filed by family members of the children, including siblings, step-parents, and grandparents. For more specific information regarding grandparent custody petitions, you can read our previous newsletter article regarding same here.

It is important that any third-party custody petition explicitly state why the petitioner believes extraordinary circumstance exist. Otherwise, a court can dismiss any such proceeding, sometimes even without an initial appearance on the matter.

If you are a third party who intends to seek custody of a child, it is advisable that you seek informed and experienced legal advice.


Heather Youngman, Esq. is a Senior Associate in Tully Rinckey PLLC’s Syracuse office, where her practice focuses on civil litigation and family and matrimonial law.

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