Luther v. Rate

• Decision Date: 04 April 1996
• Citation: 640 N.Y.S.2d 343,226 A.D.2d 803
• Parties: In the Matter of Jane F. LUTHER et al., Appellants, v. Diane M. RATE et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 343

640 N.Y.S.2d 343

226 A.D.2d 803

In the Matter of Jane F. LUTHER et al., Appellants, v. Diane M. RATE et al., Respondents.

Supreme Court, Appellate Division,

Third Department.

April 4, 1996.

Gibbons & Burke P.C. (Kenneth W. Gibbons, of counsel), Scotia, for appellants.

Ralph A. Nocera (Drew A. Lochte, of counsel), Schenectady, for respondents.

Before CARDONA, P.J., and CREW, WHITE, YESAWICH and SPAIN, JJ.

CARDONA, Presiding Justice.

Appeal from an order of the Family Court of Schenectady County (Reilly Jr., J.), entered March 15, 1995, which, in a proceeding pursuant to Family Court Act article 6 and SCPA article 17, granted respondent Diane M. Rate's motion to dismiss the petition for lack of standing.

Petitioners commenced this proceeding seeking, inter alia, custody of an infant born out of wedlock in August 1994. Unfortunately, the child's mother is deceased, allegedly killed by the child's purported biological father on September 14, 1994. Before the mother's death, she and the child lived with petitioner Jane F. Luther and her husband, petitioner Kurt R. Luther. The Luthers apparently cared for the child in the days immediately following the mother's death. Petitioner James Carolus and Mary Broecker were close friends of the mother. Although none of the petitioners were related to the mother by blood, Jane Luther was the mother's aunt through a former marriage and had physical custody of the mother when she was a teenager. On September 19, 1994, the Luthers allowed the child's maternal grandmother, respondent Diane M. Rate (hereinafter respondent), to take the child for visitation. Respondent did not return the child and apparently obtained a temporary order of custody. Petitioners thereafter commenced this proceeding which Family Court dismissed for lack of standing. We affirm.

Although Family Court had jurisdiction over this custody proceeding (see, Family Ct. Act § 651[b] ), there is no statutory authority which gives petitioners, as nonparents who were never formally given care of the child, the right to seek custody (cf., Social Services Law § 383 [certain foster parents given right to intervene in custody proceedings]; see generally, Matter of Bessette v. Saratoga County Commr. of Social Servs., 209 A.D.2d 838, 619 N.Y.S.2d 359; Matter of David M. v. Lisa M., 207 A.D.2d 623, 615 N.Y.S.2d 783). The Legislature has simply not chosen to grant such individuals standing to petition for custody. Therefore, we must look to the common law to determine whether these petitioners were entitled to seek custody (see, Matter of Janet S.M.M. v. Commissioner of Social Servs., 158 Misc.2d 851, 601 N.Y.S.2d 781; see also, Matter of David M. v. Lisa M., supra ).

Under the common law, before standing is accorded to nonparents in custody matters, extraordinary factual circumstances must first be found to exist (see, Matter of Anonymous v. Olson, 112 A.D.2d 299, 491 N.Y.S.2d 745). In addition, in all of the cases where a nonparent was granted standing, the child had some tangible and/or meaningful connection with the nonparent (see, e.g., Matter of Janet S.M.M. v. Commissioner of Social Servs., supra, at 856, 601 N.Y.S.2d 781 [and cases cited therein]. Here, while the factual circumstances can certainly be deemed extraordinary (see, Matter of Anonymous v. Olson, supra ), the facts do not reveal enough of a nexus between...