Summary
In Luther v. Rate, 226 AD2d 803, 640 NYS2d 343 (3rd Dept., 1996), the court denied standing to two sets of petitioners who sought custody of a child whose mother had been murdered a month after the child's birth.
Summary of this case from Jesse G. v. Mildred N.Opinion
April 4, 1996
Appeal from the Family Court of Schenectady County (Reilly, Jr., J.).
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; Matter of David M. v. Lisa M., 207 A.D.2d 623). 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; 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). 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 [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 the child and petitioners so as to warrant their being granted standing to pursue custody of the child ( cf., supra). Neither Carolus nor Broecker have standing because they have no blood, marital, caretaking or social relationship with the child and, in effect, are strangers to her ( see, Matter of Janet S.M.M. v. Commissioner of Social Servs., supra, at 857). The Luthers did have full caretaking responsibilities for the child immediately after the mother's death, although for only a few days when the child was not more than five weeks old. Jane Luther's marital ties were no longer significant. Therefore, we cannot say that Family Court erred, under the circumstances of this case, in concluding that the Luthers failed to demonstrate a sufficient nexus with the child to justify a finding of standing. We emphasize that our decision should not be viewed as, in any way, diminishing petitioners' expressed concerns for the child's welfare.
Crew III, White, Yesawich Jr. and Spain, JJ., concur. Ordered that the order is affirmed, without costs.