SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1278
CAF 15-01029
PRESENT: WHALEN, P.J., SMITH, CARNI, DEJOSEPH, AND CURRAN, JJ.


IN THE MATTER OF AMBER L. ORLOWSKI,
PETITIONER-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

CRYSTAL M. ZWACK AND JOHN J. ZWACK,
RESPONDENTS-APPELLANTS.
---------------------------------------
MICHAEL J. SULLIVAN, ESQ., ATTORNEY FOR
THE CHILD, APPELLANT.


MICHAEL J. SULLIVAN, ATTORNEY FOR THE CHILD, FREDONIA, APPELLANT PRO
SE.

MARY S. HAJDU, LAKEWOOD, FOR RESPONDENTS-APPELLANTS.


     Appeals from an order of the Family Court, Cattaraugus County
(Judith E. Samber, R.), entered June 2, 2015 in a proceeding pursuant
to Family Court Act article 6. The order granted the amended
petition.

     It is hereby ORDERED that the order so appealed from is
unanimously reversed on the law without costs, and the matter is
remitted to Family Court, Cattaraugus County, for further proceedings
in accordance with the following memorandum: In this proceeding
pursuant to Family Court Act article 6, respondents and the Attorney
for the Child appeal from an order granting full custody of
respondents’ grandson to petitioner, the child’s biological mother.
We note that, pursuant to a prior consent order, respondents have had
primary physical custody of the child, with visitation to petitioner,
since shortly after his birth. Nearly six years later, petitioner
filed the modification petition at issue herein, seeking primary
physical custody of the child. The order on appeal was entered
following a trial, and Family Court, relying in part on this Court’s
decision in Matter of Suarez v Williams (128 AD3d 20, revd 26 NY3d
440), found that respondents had failed to establish standing by
making the requisite showing of extraordinary circumstances. As a
consequence, the court further concluded that it was unable to reach
the issue of the best interests of the child in determining custody.

     “It is well established that, as between a parent and a
nonparent, the parent has a superior right to custody that cannot be
denied unless the nonparent establishes that the parent has
relinquished that right because of surrender, abandonment, persisting
                                 -2-                          1278
                                                         CAF 15-01029

neglect, unfitness or other like extraordinary circumstances . . . The
nonparent has the burden of proving that extraordinary circumstances
exist, and until such circumstances are shown, the court does not
reach the issue of the best interests of the child” (Matter of
Wolfford v Stephens, 145 AD3d 1569, ___). The rule governing the
nonparent’s burden applies even if there is, as here, “an existing
order of custody concerning that child unless there is a prior
determination that extraordinary circumstances exist” (Matter of Gary
G. v Roslyn P., 248 AD2d 980, 981; see Wolfford, 145 AD3d at ___).
Here, there is no prior determination of extraordinary circumstances,
and thus respondents had the burden of establishing them.

     Approximately six months after the court issued its order, the
Court of Appeals reversed our decision in Suarez and clarified what
constitutes extraordinary circumstances when the nonparent seeking
custody is a grandparent of the child. In that context, extraordinary
circumstances may be demonstrated by an “extended disruption of
custody, specifically: (1) a 24-month separation of the parent and
child, which is identified as prolonged, (2) the parent’s voluntary
relinquishment of care and control of the child during such period,
and (3) the residence of the child in the grandparents’ household”
(Suarez, 26 NY3d at 448 [internal quotation marks omitted]; see
Domestic Relations Law § 72 [2]).

     Evaluating those three elements in light of the facts of this
case, we agree with respondents and the Attorney for the Child that
respondents met their burden of establishing extraordinary
circumstances, thereby giving them standing to seek custody of the
child. It is undisputed that the child has lived in respondents’ home
since he was born, when petitioner consented to give respondents
primary physical custody of him. Although the child has a good
relationship with petitioner and has frequent visitation with her,
petitioner has never made, in nearly six years, any serious attempts
to regain custody or resume a parental role in the child’s life.
Inasmuch as petitioner voluntarily relinquished custody to respondents
and has been separated from the child for a prolonged period of well
over 24 months, during which time the child has resided in
respondents’ home, we conclude that respondents established the
requisite extraordinary circumstances (see id. at 448-449). We
therefore reverse and remit the matter to Family Court to make a
determination regarding the best interests of the child, following an
additional hearing if necessary.




Entered:   February 3, 2017                     Frances E. Cafarell
                                                Clerk of the Court