Lashawn K. v. Admin. for Children's Servs.

221 A.D.3d 431

199 N.Y.S.3d 463

In the Matter of LASHAWN K., Petitioner–Appellant,

v.ADMINISTRATION FOR CHILDREN'S SERVICES et al., Respondents–Respondents.

Empire Justice Center and the LGBTQ Advocacy Clinic at Brooklyn Law School, Amicis Curiae.

740-, M–3850

Docket No. V–02766–19

Case No. 2022–00258

Supreme Court, Appellate Division, First Department, New York.

Entered: November 9, 2023

New York Legal Assistance Group, New York (Jacquelin Hacker of counsel), for appellant.

Neighborhood Defender Service of Harlem, New York (Michael Weinstein of counsel), for respondents.

Karen Freedman, Lawyers for Children, Inc., New York (Shirim Nothenberg of counsel), and Locke Lord LLP, New York (Ira G. Greenberg of counsel), attorney for the child.

LGBTQ Advocacy Clinic, BLS Legal Services, Brooklyn Law School, Brooklyn (Susan Hazeldean of counsel), for amicus curiae.

Manzanet–Daniels, J.P., Gesmer, Gonza´lez, Kennedy, O'Neill Levy, JJ.

Order, Family Court, New York County (Jessica Brenes, Ref.), entered on or about December 14, 2021, which, after a hearing, dismissed Lashawn K.’s petition for custody and visitation of the subject child with prejudice for lack of standing, unanimously reversed, on the law, without costs, and petitioner's custody and visitation petitions remanded for a further hearing on extraordinary circumstances.

As a prerequisite to seeking custody or visitation with a child, a party must establish standing. The party may establish standing (1) as a parent pursuant to Domestic Relations Law § 70 ; (2) as a sibling for visitation pursuant to Domestic Relations Law § 71 ; (3) as a grandparent for visitation or custody pursuant to Domestic Relations Law § 72 ; or (4) by showing extraordinary circumstances pursuant to Matter of Bennett v. Jeffreys , 40 N.Y.2d 543, 387 N.Y.S.2d 821, 356 N.E.2d 277 (1976) (see Matter of Tomeka N.H. v. Jesus R., 183 A.D.3d 106, 122 N.Y.S.3d 461 [4th Dept. 2020], lv denied 36 N.Y.3d 909, 2021 WL 1181812 [2021] ).

In Matter of Brooke S.B. v. Elizabeth A.C.C. , 28 N.Y.3d 1, 39 N.Y.S.3d 89, 61 N.E.3d 488 (2016), the Court of Appeals expanded the definition of the word "parent" to include a nonbiological, nonadoptive parent who has demonstrated by clear and convincing evidence that "the parties agreed to conceive a child and to raise the child together" ( id. at 14, 39 N.Y.S.3d 89, 61 N.E.3d 488 ). Family Court determined after a hearing that petitioner failed to establish the existence of an enforceable pre-conception agreement to conceive and co-parent the subject child with the child's biological mother. The child's biological mother unexpectedly died only months after the child was born and before she and petitioner were to be married.

However, Family Court erred in dismissing petitioner's custody and visitation petitions without permitting petitioner the opportunity to present evidence supporting her argument that she had standing based on extraordinary circumstances. Indeed, the Referee stated on the record during the hearing that she agreed with the biological father's position that petitioner could only present extraordinary circumstances evidence after she established that she had standing. This is an error of law, as extraordinary circumstances is one of several bases...