DRL72

1. Where either or both of the parents of a minor child, residing within this state, is or are deceased, or where circumstances show that conditions exist which equity would see fit to intervene, a grandparent or the grandparents of such child may apply to the supreme court by commencing a special proceeding or for a writ of habeas corpus to have such child brought before such court, or may apply to the family court pursuant to subdivision (b) of section six hundred fifty-one of the family court act;  and on the return thereof, the court, by order, after due notice to the parent or any other person or party having the care, custody, and control of such child, to be given in such manner as the court shall prescribe, may make such directions as the best interest of the child may require, for visitation rights for such grandparent or grandparents in respect to such child.

2. (a) Where a grandparent or the grandparents of a minor child, residing within this state, can demonstrate to the satisfaction of the court the existence of extraordinary circumstances, such grandparent or grandparents of such child may apply to the supreme court by commencing a special proceeding or for a writ of habeas corpus to have such child brought before such court, or may apply to family court pursuant to subdivision (b) of section six hundred fifty-one of the family court act;  and on the return thereof, the court, by order, after due notice to the parent or any other person or party having the care, custody, and control of such child, to be given in such manner as the court shall prescribe, may make such directions as the best interests of the child may require, for custody rights for such grandparent or grandparents in respect to such child.  An extended disruption of custody, as such term is defined in this section, shall constitute an extraordinary circumstance.

(b) For the purposes of this section “extended disruption of custody” shall include, but not be limited to, a prolonged separation of the respondent parent and the child for at least twenty-four continuous months during which the parent voluntarily relinquished care and control of the child and the child resided in the household of the petitioner grandparent or grandparents, provided, however, that the court may find that extraordinary circumstances exist should the prolonged separation have lasted for less than twenty-four months.

(c) Nothing in this section shall limit the ability of parties to enter into consensual custody agreements absent the existence of extraordinary circumstances.

Greene v. Esplanade Venture P’ship, 2021 NY Slip Op 01092, ¶¶ 1-2, 36 N.Y.3d 513, 524-25, 144 N.Y.S.3d 654, 660-61, 168 N.E.3d 827, 833-34

Even more important in the context of this case is the legislative recognition of the changing nature of society’s understanding of family and the special relationship between grandparents and grandchildren. In the 1960s the legislature established a vehicle for grandparents to obtain visitation rights with minor grandchildren (see Domestic Relations Law § 72; L 1966 ch 631 § 1). 

Although section 72 originally addressed only grandparent visitation, the statute was amended in 2003 “to provide guidance regarding the ability of grandparents to obtain standing in custody proceedings involving their grandchildren” (L 2003, ch 657, § 1). 

Following the amendment, section 72 now provides “that grandparents may demonstrate standing to seek custody based on extraordinary circumstances where the child has lived with the grandparents for a prolonged period of time, even if the child had contact with, and spent time with, a parent while the child lived with the grandparents” (Matter of Suarez v Williams, 26 NY3d 440, 444, 23 NYS3d 617, 44 NE3d 915 [2015]).

The 2003 amendment was enacted based on an express legislative finding illustrative of the policy choice here. Namely, the legislature acknowledged that “grandparents play a special role in the lives of their grandchildren and are increasingly functioning as care givers in their grandchildren[‘s] lives. 

In recognition of this critical role that many grandparents play in the lives of their grandchildren, the legislature finds it necessary to provide guidance regarding the ability of grandparents to obtain standing in custody proceedings involving their grandchildren” (L 2003, ch 657, § 1).

Thus, this Court recognized the “special status” of grandparents and that the unique path embodied in section 72 to establish extraordinary circumstances was enacted “in recognition of the important role of grandparents and the increasing number of grandparents raising their grandchildren” (Suarez, 26 NY3d at 446, 448).