In family law, the standard for custody determinations is the “best interests of the child.” In determining the “best interests of the child,” courts look at the totality of the circumstances, and no single factor is controlling. Although the factors vary state to state, they may include the emotional ties between the child and each parent, each parent’s ability to provide for the child, the mental and physical health of each party, the responsibility for care previously exercised by each parent, and the child’s wishes (if the child is of an appropriate age).
However, in certain custody disputes, the best interests of the child are not the only consideration, for example, when a third party nonparent seeks custody of a child. Courts have held that a biological parent has a fundamental right to custody of his or her child superior to that of a nonparent in the absence of “surrender, abandonment, persisting neglect, unfitness or other like extraordinary circumstances.” Bennett v. Jeffreys, 40 N.Y.2d 543, 544 (1976). In these types of custody disputes, the burden is on the nonparent to prove the existence of “extraordinary circumstances.” Absent proof of extraordinary circumstances, an inquiry into the best interests of the child is not triggered.
Although the “best interests of the child” standard is paramount in family law, it does not automatically trump a parent’s fundamental rights. When a nonparent third party seeks custody of a child, “extraordinary circumstances” is a threshold issue. It serves to protect the fundamental rights of a parent to actually be a parent. However, the right to be a parent is not absolute – when a third party nonparent demonstrates the existence of extraordinary circumstances, the “best interests of the child” standard applies in determining custody. Together, the “extraordinary circumstances” doctrine and the “best interests of the child” standard protect the rights of both parent and child.