New York custody determinations have always been based upon our public policy that courts should do what is in the best interest of the child. See DRL §§70 and 240; Finlay v. Finlay, 240 N.Y. 429 (1925). However, custody determinations have been subordinated to the right of biological parents to bring up their children as they see fit, absent interference from the state unless the child’s best interests would be endangered. Stanley v. Illinois, 405 U.S. 645, 651 (1972). This public policy has been eroded in recent years to accommodate “increasingly varied familial relationships.” See Matter of Brooke S.B. v. Elizabeth A. C.C., 28 N.Y.3d 1 (2011) (Brooke).

Forty-five years ago, in Bennett v. Jeffreys, 40 N.Y.2d 543 (1976), the Court of Appeals held that the courts are powerless to supplant parents except for grievous cause or necessity (citing Stanley). It held that unless there was proof of “abandonment, unfitness, persistent neglect, unfortunate or involuntary extended disruption of custody, or other equivalent but rare extraordinary circumstances which would drastically affect the welfare of the child,” a person who was not a biological parent had no standing to apply for custody in the face of opposition by a biological parent. A finding of extraordinary circumstances gives the petitioner standing and triggers the court’s right to make a disposition that is in the child’s best interests.

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