Paczkowski v. Paczkowski

*1 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); and it is further,

ORDERED that the order is affirmed; and it is further,

ORDERED that one bill of costs is awarded to the respondent.

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 AD3d 853; see Matter of Bennett v. Jeffreys, 40 N.Y.2d 543, 548; Matter of Diana B. v. Lorry B., 111 AD3d 927). 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 AD3d 683, 684; Matter of Behrens v. Rimland, 32 AD3d 929, 931; Matter of Marquis B. v. Alexis H., 110 AD3d 790, 790–791). 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 NY3d 576, 593; Matter of Findlay, 253 N.Y. 1, 7; Matter of Marilene S. v. David H., 63 AD3d 949, 950), 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; Wendy G–M. v. Erin G–M., 45 Misc.3d 574, 578).

The petitioner's remaining contentions are either not properly before us, based on matter dehors the record, or without merit.

Parallel Citations

2015 N.Y. Slip Op. 04325

End of Document

Selected Topics

Child Custody
- Grounds and Factors
- - Parent of Custody of Child Absent Surrender

Secondary Sources
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3 New York Matrimonial Law and Practice § 21:13
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§ 16:30.Custody—Disputes between parents and third persons
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Award of custody of child where contest is between natural parent and stepparent
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...This annotation collects and analyzes the state and federal cases dealing with the claim of a legitimate or legitimated child's stepparent, vis-a-vis the claim of the child's natural parent, to permane...
1. § 21:15.Standards in custody determinations—Between a parent and third party—Extraordinary circumstances
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  ...The term "extraordinary circumstances" was first introduced into New York custody law by the Court of Appeals in Matter of Bennett v. Jeffreys, wherein the court stated: The State may not deprive a par...
2. § 21:14.Standards in custody determinations—Between a parent and third party
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5. CHILDREN “NOT IN THE PHYSICAL CUSTODY OF ONE OF [THEIR] PARENTS:” THE SUPERIOR RIGHTS DOCTRINE AND THIRD-PARTY STANDING UNDER THE UNIFORM MARRIAGE AND DISSOLUTION OF MARRIAGE ACT
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  WASHINGTON STATE DEPARTMENT OF SOCIAL AND HEALTH SERVICES, et al., Petitioners, v. GUARDIANSHIP ESTATE OF DANNY KEFFELER. By Wanda PIERCE, Guardian, And Other Persons Similarly Situated, Respondents.
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See More Briefs

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Supreme Court, Appellate Division, Second Department, New York.May 20, 2015--- N.Y.S.3d ----2015 N.Y. Slip Op. 04325 (Approx. 2 pages)

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