Matter of Jose C. v. Johnny C.

2017 NY Slip Op 8490, 156 A.D.3d 430, 64 N.Y.S.3d 515, 2017 WL 6001655

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 5, 2017
• Docket: 5142
• Status: Published

Opinion

Order, Family Court, New York County (J. Machelle Sweet-ing, J.), entered on or about November 21, 2016, which, to the extent appealed from as limited by the briefs, dismissed petitioner grandparents’ petition for custody of the subject child, unanimously affirmed, without costs.

Family Court properly dismissed summarily the paternal grandparents’ petition for custody of the subject child, since the petition contained only conclusory statements that failed to allege extraordinary circumstances warranting a hearing (see Matter of Maddox v Maddox, 141 AD3d 529 [2d Dept 2016], lv denied 28 NY3d 905 [2016]). There was no basis for the child to be placed in the custody of the grandparents without a showing of extraordinary circumstances, where the child was in the custody of an otherwise fit parent (see id.).

Although the grandparents asserted that they cared for the child for seven years after his birth, there was no proof of a prolonged separation between the mother and child or intent by the mother to relinquish her parental duties and care of the child to the grandparents (compare Matter of Suarez v Williams, 26 NY3d 440 [2015] [grandparents may demonstrate standing where the child has lived with the grandparents for a prolonged period of time]). Nor was there an allegation that rose to the level of surrender, abandonment, unfitness, or persistent neglect sufficient to warrant a hearing (see id. at 446; see also Matter of Bennett v Jeffreys, 40 NY2d 543 [1976]).

Concur—Richter, J.R, Manzanet-Daniels, Andrias, Kern and Singh, JJ.