Non-Parent Custody in New York Family Court

What Non-Parent Custody Means in New York

A non-parent custody petition asks the court to take legal and physical custody away from a biological parent and give it to someone else — a grandparent, an aunt, a family friend. It is the heaviest tool available to a kinship caregiver short of adoption, and New York courts treat it accordingly.

Non-parent custody is governed by Article 6 of the Family Court Act and Section 70 of the Domestic Relations Law. It grants the non-parent full decision-making authority and physical care of the child. But parental rights are not terminated. The biological parents keep residual rights — the right to petition for modification, the right to visitation (unless restricted by the court), and the obligation to pay child support.

The Two-Step Test: Extraordinary Circumstances Then Best Interests

Under the landmark Court of Appeals decision in Bennett v. Jeffreys (1976), a non-parent cannot get custody simply by showing they would be a better caregiver. The court applies a two-step test:

Step one: extraordinary circumstances. The non-parent must prove that something has gone fundamentally wrong with the parental relationship. The recognized grounds include:

• Surrender of the child
• Abandonment
• Persistent neglect
• Parental unfitness or persistent neglect, as established by the evidence
• Extended disruption of custody — DRL Section 72(2) includes 24 continuous months of residence with a grandparent as an extended disruption, but that period is not an absolute prerequisite; courts may find extraordinary circumstances over a shorter period depending on the facts

If extraordinary circumstances are not established, the petition is dismissed. The court never reaches the question of what is best for the child.

Step two: best interests. Only after extraordinary circumstances are proven does the court evaluate whether placing the child with the non-parent serves the child's best interests — looking at the child's emotional bonds, educational stability, health needs, and each party's ability to provide care.

Who Has Standing to File

Grandparents have a specific statutory threshold under DRL Section 72(2). They still must prove extraordinary circumstances, including any applicable extended disruption, before the court considers the child's best interests.

Aunts, uncles, older siblings, and other relatives file under FCA Article 6's general provisions. They must prove extraordinary circumstances under the common-law Bennett standard. There is no specific statute for these relationships — standing comes from the facts of the case.

Non-relatives (family friends, godparents) must establish extraordinary circumstances under the general nonparent standard; they are not covered by the grandparent-specific statute.

Great-grandparents are excluded from the grandparent statute. The Third Department confirmed in Matter of Stacy H. v. Jessica T. (2026) that DRL Section 72 must be read strictly — great-grandparents must prove standing under the general extraordinary circumstances standard.

What Happens at the Hearing

If the parents consent, the process may be straightforward — background checks, possibly a brief hearing, and a consent order. If a parent contests the petition:

1. First appearance — The court confirms service, identifies the parties, and may appoint an Attorney for the Child to represent the child's interests independently.

2. Background checks — The court orders SCR clearance and DCJS fingerprinting for the petitioner and all adult household members over 18.

3. Fact-finding hearing — A full evidentiary hearing where the petitioner presents testimony and documents to establish extraordinary circumstances. Witnesses, school records, medical records, and prior court records are common evidence.

4. Dispositional hearing — If extraordinary circumstances are found, the court takes evidence on the child's best interests and issues a custody order.

The Court Process Guide covers the entire hearing process, including how to prepare evidence, what to bring to court, and how the judge decides contested cases between a parent and a non-parent.

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