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Grandmother seeks guardianship over her two grandsons. Matter of Chariss C. v Jose G. 2021 NY Slip Op 50757(U)


Custody cases are not always between parents. A substantial number of cases heard by Family Court in New York involve other relatives, including grandparents. In the Matter of Chariss C. v Jose G., the court was asked to decide whether to grant the petitioning grandmother guardianship over her two grandchildren or grant the children’s mother sole custody and guardianship.

While residing at the petitioner grandmother’s house, the mother, Respondent Courtney C. gave birth to two Children. The children were born in 2010 and 2013. The father, Respondent Jose G., was rarely involved in the lives of the children and did not support them. The grandmother and her husband primarily financially provided for the children and provided for their educational needs as well as food and housing.

The mother has lived with the grandmother along with the kids. However, in September 2018, the mother unexpectedly left the residence with the kids without revealing where she was going and without allowing the grandmother visitation.  That prompted the grandmother to file a petition seeking sole guardianship of the children.

In her petition for guardianship, the grandmother alleged that because the children have always lived with her, she was able to provide a stable and loving environment for the children. She also alleged that the mother of the children suffered from unresolved mental issues and that the father had not been part of the lives of the children.  The court issued temporary orders of guardianship in favor of the grandmother that allowed her to make residential, medical and educational decisions for the children. The mother was allowed day visitation. However, the mother repeatedly refused to enroll them in school and refused to provide their grandmother with their medications.

Meanwhile, both the grandmother and mother were investigated.  It was determined that the grandmother provided a loving stable home, while the mother had multiple allegations of domestic violence against her, reports of neglect against her, and had no permanent home.

In response to the grandmother’s petition for guardianship, the mother filed petition for sole custody and guardianship.

The rule of law is that parents have the superior right to custody over a nonparent, even if that nonparent is a grandparent.  To overcome this presumption, there must be compelling evidence that the it is in the best interest of the child for custody or guardianship to be granted to a nonparent.

In determining the arrangement that would be in the best interests of the children, the Family Court, Kings County reviewed both parties’ histories with the children.  The children lived with the grandmother all of their lives. The mother and her husband have stable employment and have provided for the care of the children all their lives. They live in a 3-bedroom apartment where each of the children has his own bedroom. In addition, the grandmother had provided for the children’s medical needs, noting a delay in speech in one child. The child was diagnosed with autism and the grandmother takes him to therapy and enrolled him in a special education program.

The grandmother testified that the mother had been an inconsistent presence in the lives of the children. There was one period where she had not seen them for 6 months.  She rarely asked about their wellbeing.  In addition, the mother has worked only sporadically and has never provided financially for the children.  In fact, the grandmother described the mother as the children’s babysitter when she and her husband where at work. The mother showed impatience with the children and frequently harassed the grandmother about “wrongfully taking” the children from her.

The grandmother explained that the she believes the mother suffers from mental illness that stemmed from being exposed to lead paint as a child. The mother did not graduate from high school and has not had a steady job in seven years.

The mother testified that she was able to provide for the children. She conceded that she has moved from place to place and has had several different jobs, but testified that she now lives with a cousin and has a job. While she admitted that she has medical issues including chronic inflammation of the kidneys, Pyelonephritis, and has been hospitalized over nine times, she denies having mental illness. She proposed that if she does become ill, the father could help care for the children.

After reviewing the testimony and other evidence, the court concluded that the grandmother  sufficiently established that both the mother and the father failed to provide for the emotional and financial needs of the children.  Thus, she met burden of proving that extraordinary circumstances existed and that she must be the Children’s guardian.


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