There was another recent case out of the Fourth Department Appellate Division whereby a Petitioner appealed the Family Court order awarding the aunt sole custody of her child. After hearing the court considered testimony from the parties and submissions of the threatening text messages and web posts by the mother against the aunt. The mother contended that as a non-parent the aunt failed to establish the existence of extraordinary circumstances warranting an inquiry into the best interests of the children and that the court improperly relied on the five-year length of separation in making its determination.

The Fourth Department found in favor of the aunt and against the mother. Finding that the aunt had met her burden based on accumulative effect which added up to extraordinary circumstances. The court looked at 1) the mother’s voluntary forfeiture of physical custody, 2) the psychological bond between the children and the aunt, 3) the mother’s failure to address her mental issues, and 4) her psychological abusive behavior toward the children.

In addition, the court also took note of the mother’s filing over 85 petitions in five years demonstrating her “legitimate” attempt to regain custody. The court found that the filings were merit less and amounted to abusive and harassing litigation. This is a good case to show what extraordinary circumstances would be for a non-parent to be awarded custody and overcome the rights of a parent in litigation. Matter of Byler v. Byler, 452 CAS 21-01187 (July 1).