Stewart v. Zigmant

198 A.D.2d 883, 605 N.Y.S.2d 701

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 19, 1993
• Docket: Appeal No. 1
• Status: Published

Opinion

—Appeal unanimously dismissed without costs. Memorandum: Petitioner appeals from four orders, two of which dismissed her petitions against respondents John Zigmant and Lee Zigmant, respectively (appeal Nos. 1 and 2), and two of which dismissed her amended petitions against them (appeal Nos. 3 and 4). The appeals from the orders dismissing the initial petitions must be dismissed because those petitions were superseded by the amended ones.

The court erred in dismissing the amended petitions based on its finding that petitioner lacked standing. In her amended petitions, petitioner sought custody of Kristopher, asserting that she is his natural mother and his sister by adoption, as well as the custodial mother of his three siblings. She asserted that an award of custody to her is in his best interests because respondents, who are her mother and stepfather and Kristopher’s adoptive parents, are unfit and abusive parents and that Kristopher repeatedly has run away and has sought refuge at her home.

Petitioner consented to Kristopher’s adoption and therefore has no standing as his parent. She has standing, however, based on her fraternal relationship to him (see, Domestic Relations Law § 117 [1] [g]) and her assertions in her amended petitions that she has had a continuous relationship with him, that he has run away from respondents to her home, that respondents’ home is unfit, and that respondents are abusive (see, Matter of Anonymous v Olson, 112 AD2d 299; Matter of Ralph V. v Andrew M., 85 AD2d 606; see generally, Matter of Bennett v Jeffreys, 40 NY2d 543; Finlay v Finlay, 240 NY 429; compare, Matter of Emanuel S. v Joseph E., 78 NY2d 178). (Appeal from Order of Erie County Family Court, Honan, J.— Custody.) Present — Pine, J. P., Fallon, Boomer, Davis and Boehm, JJ.