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Legal Information: New York


November 9, 2020

Who can get custody?

At least one of the child’s parents has a right to custody, unless both parents are no longer living, or there is clear and convincing evidence that both parents are “unfit,” or other extraordinary circumstances exist.  In order for a non-parent to get custody, s/he must show that one of the following is true:

  • the parent has abandoned or surrendered the child;
  • the parent has neglected the child;
  • the parent is unfit; or
  • there are extraordinary circumstances (reasons) why the non-parent should get custody and giving the non-parent custody is in the best interest of the child.1

In the case of a grandparent applying for custody, if the child was voluntarily given to the grandparent by the parent and the child has lived with the grandparent for 24 months continuously, this is recognized by the law as an “extraordinary circumstance.”  However, this does not mean that a child has to live with a grandparent for this amount of time in order for the grandparent to apply for custody; it is just one specific example in the law.2

1 See Matter of Bennett v. Jeffreys; 40 N.Y.2d 543, 387 N.Y.S.2d 821 (Ct of Appeals 1976); see also “The Basics: Custody and Visitation in New York State”
2 NY Dom Rel Law § 72(2)(a),(b)