Legal Question in Family Law in New York

StepDad Custody

I live in New York. My fiancee recently passed away. She has a 14 year old daughter who I have raised for the last 12 years. I covered her on insurance and everything. Anyways she wants to stay here at our home where she has lived all her life. She does not want to leave her family where she has a 26yr old brother and a 10 year old brother. The 26yr old is slightly mentally challanged and that is why he still lives at home and always will. Since I have had a stable job for 11 years, insured her, raised her, and have a stable household what are my chances of her being able to stay. He lives in PA but said he would move back to Rome just to get her. (A judge placed a temp order for her to stay with me at this time) I have read were it is the Best Interest of the Child and since the child is 14 and want to stay I should be ok. Also I have read where Detrimental to the Child includes removing the child from the only place she knows as home and from the person who has supported her both physically and emotionally for the most of her life. But I have read where NY does not take these things into concideration. Her father is not a bad person except he likes to play emotional games with her. She constantly cries when she is with him.


Asked on 10/07/08, 8:21 pm

1 Answer from Attorneys
Michael Markowitz Michael A. Markowitz, PC

Re: StepDad Custody

"It has long been recognized that as between a parent and a third person, parental custody of a child may not be displaced absent grievous cause or necessity ( People ex rel. Kropp v. Shepsky, 305 N.Y. 465, 469, 113 N.E.2d 801). The underlying rationale for this rule is that there is a presumption that it is in a child's best interest to be raised by at least one parent unless the parents are determined to be unfit." Ms. H. v. Ms. L. 16 Misc.3d 1034, N.Y.Fam.Ct.,2007.

However, "[i]n extraordinary circumstances, such as abandonment, and neglect, the best interest of the child test is sparked, and non-biological parents may be issued standing to seek custody of the minor. ... In determining whether extraordinary circumstances exist, the court should consider the length of time the child has lived with the non-parent, the quality of the relationship and the length of time the biological parent has allowed such custody to continue without trying to assume the parental role." (See Matter of McDevitt v. Stimpson, 281 A.D.2d 860, 722 N.Y.S.2d 615).

Based on your question and my understanding of the law, you have standing to argue for custody of the child. To win you will have to demonstrate that having the child remain with you is in her best interests.

Mike.

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Answered on 10/08/08, 9:23 am


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