Lynda A. H. v. Diane T. O.

• Decision Date: 10 June 1998
• Citation: 243 A.D.2d 24,673 N.Y.S.2d 989
• Parties: , 1998 N.Y. Slip Op. 5533 Matter of LYNDA A.H., Respondent, v. DIANE T.O., Appellant.
• Court: New York Supreme Court — Appellate Division

Page 989

673 N.Y.S.2d 989

243 A.D.2d 24, 1998 N.Y. Slip Op. 5533

Matter of LYNDA A.H., Respondent, v. DIANE T.O., Appellant.

Supreme Court, Appellate Division Fourth Department.

June 10, 1998.

Marsha Hunt, Syracuse, for respondent-appellant.

Alderman & Alderman by Richard Alderman, Syracuse, for petitioner-respondent.

Lucia B. Whisenand, Syracuse, for Law Guardian.

Before GREEN, J.P., and LAWTON, WISNER, CALLAHAN and BOEHM, JJ.

BOEHM, Justice:

After living together for 17 years, petitioner and respondent decided to have a child and agreed that respondent would be artificially inseminated. The child was born on September 17, 1993. Together they planned for the birth of the child and agreed to share the rights and responsibilities of child-rearing. The child was given petitioner's last name as her middle name and respondent's last name as her last name. Both parties participated in rearing the child and contributed to her financial support. The child called petitioner "omi" (i.e., other mommy). In February 1997, when the child was 3 1/2 years old, the parties jointly filed an adoption petition in Family Court to enable petitioner to adopt the child. In October 1997, the parties' relationship ended, and respondent and the child moved out of the house they shared with petitioner. Respondent revoked her consent to the adoption, and the court sua sponte dismissed the adoption petition. Thereafter, petitioner commenced this proceeding pursuant to Family Court Act § 651, seeking custody or, in the alternative, visitation with the child.

The issues on this appeal are whether petitioner, who is not a parent of the child, has standing to obtain custody of or visitation with the child in the absence of extraordinary circumstances, and whether Family Court has the authority to set the fee of the Law Guardian and require that it be paid by the parties.

Family Court erred in denying respondent's motion to dismiss the petition and in awarding temporary visitation to petitioner. It has long been the law in this State that, as between a biological parent and a nonparent, the parent has a superior right to custody of a child "that cannot be denied unless the nonparent can establish that the parent has relinquished that right because of 'surrender, abandonment, persisting neglect, unfitness or other like extraordinary circumstances' " (Matter of Michael G.B. v. Angela L.B., 219 A.D.2d 289, 291, 642 N.Y.S.2d 452, quoting Matter of Bennett v. Jeffreys, 40 N.Y.2d 543, 544, 387 N.Y.S.2d 821, 356 N.E.2d 277; see, Matter of Michael B. [Marvin B.], 80 N.Y.2d 299, 309, 590 N.Y.S.2d 60, 604 N.E.2d 122; Matter of Male Infant L., 61 N.Y.2d 420, 426-428, 474 N.Y.S.2d 447, 462 N.E.2d 1165; Matter of Merritt v. Way, 58 N.Y.2d 850, 460 N.Y.S.2d 20, 446 N.E.2d 776; Matter of Dickson v. Lascaris, 53 N.Y.2d 204, 208-209, 440 N.Y.S.2d 884, 423 N.E.2d 361). The nonparent has the burden of proving that extraordinary circumstances exist. "[U]ntil such circumstances are shown, the court does not reach the issue of the best interests of the child" (Matter of Michael G.B. v. Angela L.B., supra, at 291, 642 N.Y.S.2d 452). Here, petitioner has failed to show that respondent relinquished her superior right to custody. Although the proof that is necessary to establish extraordinary circumstances "cannot be precisely measured" (Matter of Michael G.B. v. Angela L.B., supra, at 292, 642 N.Y.S.2d 452), it is insufficient to show that the child has bonded psychologically with the nonparent (see, Matter of Burghdurf v. Rogers, 233 A.D.2d 713, 715, 650 N.Y.S.2d 348, lv. denied 89 N.Y.2d 810, 657 N.Y.S.2d 403, 679 N.E.2d 642; Matter of Gray v. Chambers, 222 A.D.2d 753, 754, 634 N.Y.S.2d 864, lv. denied 87 N.Y.2d 811, 644 N.Y.S.2d 144, 666 N.E.2d 1058; Matter of Michael G.B. v. Angela L.B., supra, at 292, 642 N.Y.S.2d 452; Matter of Bisignano v. Walz, 164 A.D.2d 317, 319, 563 N.Y.S.2d 938). Absent evidence that respondent has abandoned, surrendered or otherwise forfeited her parental rights, "the inquiry ends"(Matter of Male Infant L., supra, at 427, 474 N.Y.S.2d 447, 462 N.E.2d 1165).

Further, petitioner, who is neither the biological nor adoptive parent, lacks standing to seek visitation of the child, who is properly in the custody of her biological mother (see, Matter of Alison D. v. Virginia M., 77 N.Y.2d 651, 569 N.Y.S.2d 586, 572 N.E.2d 27; Matter of Ronald FF. v. Cindy GG., 70 N.Y.2d 141, 517 N.Y.S.2d 932, 511 N.E.2d 75; Matter of Boland v. Boland, 186 A.D.2d 1065, 588 N.Y.S.2d 485). The award of temporary visitation to petitioner impermissibly impaired respondent's right to custody and control of the child.

Contrary to the contention of petitioner and the Law Guardian, the custody and visitation rights of petitioner in a proceeding commenced under Family Court Act § 651 are no greater than those of the petitioner in Matter of Alison D. v. Virginia M. (supra), who commenced her...