Extraordinary Circumstances for Grandparent Custody May Be Proven by Extended Disruption Plus Ongoing Parental Instability; Flexible “Mutually Agreed” Parenting Time Upheld Where Structure Is Impracticable

1. Introduction

Matter of Rasool QQ. v. Rotisha PP. (2026 NY Slip Op 02896 [249 AD3d 1241] [3d Dept May 7, 2026]) arises from intertwined Family Court Act article 6 (custody) and article 8 (family offense/order of protection) proceedings involving a child born in 2016. The key parties are the child’s father (Rasool QQ.), the mother (Rotisha PP.), and the paternal grandmother (Melissa OO.).

The central issues on appeal were: (i) whether the grandmother, as a nonparent, proved “extraordinary circumstances” sufficient to overcome the parents’ superior custodial right and obtain custody; (ii) whether awarding the father parenting time “as mutually agreed upon” was an abuse of discretion given acrimony between father and grandmother; and (iii) whether the father’s challenge to a two-year order of protection in the grandmother’s favor was justiciable after expiration.

2. Summary of the Opinion

The Third Department affirmed Family Court’s order awarding the grandmother sole legal custody and primary physical placement. It held that extraordinary circumstances were supported by a sound and substantial basis in the record, pointing to the child’s long-term residence with the grandmother, the mother’s persistent housing instability and lack of engagement/support, and the father’s incarceration history, untreated mental health diagnoses, criminal history, lack of school involvement, refusal to cooperate with DSS-supervised visitation coordination, and a conviction for endangering the welfare of a child arising from corporal punishment.

The Court further upheld the parenting-time provision granting the father access “as mutually agreed upon,” reasoning that despite a strained relationship, the grandmother was willing to facilitate parenting time and the father’s recurring incarceration made a structured schedule inappropriate. Finally, it dismissed as moot the challenge to the grandmother’s order of protection because it had expired by its own terms and the father did not challenge the underlying family offense findings.

3. Analysis

3.1. Precedents Cited (and How They Shaped the Decision)

  • Matter of Jared MM. v Mark KK., 205 AD3d 1084 (3d Dept 2022): Quoted for the controlling framework that a parent’s custodial right is superior absent a nonparent’s showing of “surrender, abandonment, persistent neglect, unfitness, an extended disruption of custody or other like extraordinary circumstances.” This case supplies the gatekeeping rule: without extraordinary circumstances, the court cannot reach best interests against a parent.
  • Matter of John XX. v Cathy YY., 243 AD3d 1152 (3d Dept 2025): Cited twice to reinforce (i) the extraordinary-circumstances threshold and (ii) examples of conduct that, in the aggregate, can meet that threshold. Its use signals continuity in the Third Department’s approach—extraordinary circumstances can be established by patterns of instability and harmful conduct, not only by a single extreme event.
  • Matter of Ronda A. v Jennifer A., 224 AD3d 1130 (3d Dept 2024): Quoted for the definition of “extended disruption of custody” as a prolonged separation of at least 24 continuous months during which the parent voluntarily relinquished care and control while the child resided with the grandparent petitioner. This precedent grounds the grandmother’s standing and the extraordinary-circumstances finding in a time-based and conduct-based concept.
  • Matter of Karen Q. v Christina R., 170 AD3d 1446 (3d Dept 2019): Cited alongside Ronda A. to confirm the extended-disruption pathway for grandparents seeking custody over parents.
  • Matter of Philip UU. v Amanda UU., 173 AD3d 1382 (3d Dept 2019): Quoted for the proposition that “behaviors that may, in the aggregate,” constitute extraordinary circumstances include squalor, unaddressed mental health issues, housing/employment instability, and questionable corporal punishment—i.e., an overall pattern of placing adult interests ahead of the child. The Court used this lens to treat the parents’ conduct as a cumulative risk profile rather than isolated shortcomings.
  • Matter of Candy II. v Kandice HH., 236 AD3d 1156 (3d Dept 2025) and Matter of Lisa F. v Thomas E., 211 AD3d 1367 (3d Dept 2022): Cited for the burden-shifting sequence: nonparent must prove extraordinary circumstances; only then does the analysis move to best interests. Lisa F. is also cited for appellate deference: a custody determination will not be disturbed if supported by a sound and substantial basis in the record.
  • Matter of Amber B. v Scott C., 207 AD3d 847 (3d Dept 2022): Reinforces the “sound and substantial basis” standard of review.
  • Matter of Tamika B. v Pamela C., 187 AD3d 1332 (3d Dept 2020) and Matter of Renee TT. v Britney UU., 133 AD3d 1101 (3d Dept 2015): Cited to support awarding custody to a nonparent who has effectively acted as the child’s primary caregiver for a substantial period in a stable, supportive manner, consistent with best interests once extraordinary circumstances are established.
  • Matter of Henry CC. v Antoinette DD., 222 AD3d 1231 (3d Dept 2023) and Matter of Tina X. v Thomas Y., 233 AD3d 1272 (3d Dept 2024): Cited for the principle that Family Court has broad discretion to craft parenting time in the child’s best interests, reviewed for a sound and substantial basis. The Court used these cases to justify flexibility (including “mutually agreed upon” parenting time) where circumstances make rigid scheduling impractical.
  • Matter of Melissa X. v Javon Y., 200 AD3d 1451 (3d Dept 2021) and Matter of Bonnie AA. v Kiya DD., 186 AD3d 1784 (3d Dept 2020), lv dismissed & denied 36 NY3d 933 (2020): Cited to uphold the parenting-time arrangement under the deferential standard, particularly where the record supports feasibility and child-focused administration by the custodial party.
  • Matter of Kristine Z. v Anthony C., 43 AD3d 1284 (4th Dept 2007), lv denied 10 NY3d 705 (2008): Cited (with Tina X.) for mootness: an expired order of protection is generally not reviewable absent a live controversy, especially where the appellant does not challenge the underlying findings.

3.2. Legal Reasoning

A. The “extraordinary circumstances” gateway was satisfied

The Court applied the established two-step framework: (1) determine whether a nonparent proved extraordinary circumstances; (2) if so, decide custody under best interests. On step one, the Court relied on both extended disruption facts and broader cumulative dysfunction.

  • Child’s long-term placement with grandmother: The record showed the child lived with the grandmother the overwhelming majority of his life (grandmother testified “90% of the time”), with the mother taking the child only periodically for short intervals and then returning him. This supported a prolonged separation and de facto relinquishment consistent with “extended disruption of custody.”
  • Mother’s instability and disengagement: The mother left the grandmother’s home shortly after birth, had short-term housing “in various places,” conceded she had no interaction with the child’s school, and provided no financial support—facts the Court treated as undermining parental care and control.
  • Father’s incarceration, mental health, and endangerment conviction: The father’s incarceration during the child’s early life, untreated diagnoses, arrests for fighting during the litigation, refusal to cooperate with DSS-supervised visitation coordination (and a year without visiting), lack of knowledge about the child’s school, and conviction for endangering the welfare of a child (from corporal punishment) formed a pattern of instability and risk.
  • DSS corroboration: DSS testimony tied parental behavior to concrete service barriers (refusal to sign releases, perceived aggression causing professionals to be uncomfortable) and identified why neglect petitions were ultimately filed despite the grandmother’s stabilizing role.

In combination, these facts fit squarely within the precedent-recognized category of aggregate behaviors demonstrating extraordinary circumstances, thereby permitting the court to consider custody beyond the parents’ superior right.

B. Best interests favored continuing the grandmother’s primary caregiving role

On step two, the Court emphasized continuity, stability, and demonstrated caregiving capacity. The grandmother retired, raised the child since birth, managed medical care, schooling, speech evaluation, daily needs, and financial support, while both parents provided minimal support. Giving deference to Family Court’s credibility findings, the Third Department concluded that awarding the grandmother sole legal custody and primary physical placement had a sound and substantial basis.

C. Parenting time “as mutually agreed upon” was upheld as a discretionary, fact-sensitive solution

The father argued that acrimony with the grandmother made “mutually agreed” parenting time unworkable. The Court acknowledged the strain but focused on two record-based points: (i) evidence the grandmother was willing to work with the father to ensure parenting time consistent with court directives; and (ii) the father’s incarceration “especially at the conclusion of the fact-finding hearing” made a structured schedule inappropriate. The Court thus treated flexibility not as abdication, but as an administrable plan under unstable logistics.

D. Mootness of the order-of-protection appeal

The Court dismissed the challenge to the grandmother’s two-year order of protection as moot because it expired (March 29, 2025) and the father did not challenge the family offense findings underlying it. Without a live dispute affecting the parties’ rights, appellate review was unwarranted under established mootness doctrine.

3.3. Impact

  • Reinforces “extended disruption + aggregate instability” as a practical proof model: The decision illustrates that grandparents can satisfy extraordinary circumstances not only via a strict 24-month timeline theory, but also through a record showing long-term de facto caregiving plus ongoing parental instability, disengagement, and harmful conduct.
  • Validates flexible parenting-time orders where structure is impracticable: By affirming “as mutually agreed upon” parenting time in the context of incarceration and conflict, the Court signals that Family Court may prioritize feasibility and child stability over rigid schedules when a parent’s circumstances make adherence doubtful.
  • Clarifies litigation strategy on orders of protection: The mootness holding underscores that appellants should timely seek relief and, if appealing an expired order, must identify a recognized exception or challenge the underlying findings to avoid dismissal.

4. Complex Concepts Simplified

Superior right of a parent
New York starts from the presumption that a parent’s right to custody is stronger than a nonparent’s. A court cannot decide “best interests” between a parent and nonparent unless the nonparent first proves an exception (extraordinary circumstances).
Extraordinary circumstances
A threshold showing that something serious and sustained has occurred—such as abandonment, unfitness, persistent neglect, or an “extended disruption of custody”—making it permissible for the court to consider custody with a nonparent.
Extended disruption of custody
A prolonged period (often at least 24 continuous months) where the parent has effectively relinquished care and control and the child has lived with the petitioner, such as a grandparent.
Best interests of the child
Once extraordinary circumstances are shown, the court chooses the custodial arrangement that best promotes the child’s welfare—commonly focusing on stability, continuity, caregiving history, the child’s needs, and each party’s capacity to meet them.
Sound and substantial basis in the record
The deferential appellate standard for custody and parenting-time decisions: if the record reasonably supports Family Court’s determination (especially credibility-based findings), the appellate court will not substitute its judgment.
Mootness
If the challenged order has already expired and there is no ongoing legal effect or live controversy, an appellate court generally will not decide the issue.

5. Conclusion

Matter of Rasool QQ. v. Rotisha PP. affirms that a grandparent may overcome the parents’ superior custodial right by proving extraordinary circumstances through a record of long-term de facto placement coupled with parental instability, disengagement, mental-health nonmanagement, criminal justice involvement, and child-endangering conduct. Once that threshold is met, the Court endorsed custody for the caregiver who has provided consistent, parent-like stability. The decision also supports Family Court’s discretion to order parenting time “as mutually agreed upon” when a parent’s incarceration history and logistics make rigid scheduling unrealistic, and it reiterates that expired orders of protection are generally unreviewable on appeal absent a live controversy or a challenge to underlying findings.