
    In the Matter of Tamika C.P., Appellant, v Denise M., Respondent.
    [834 NYS2d 772]—
   Appeal from an order of the Family Court, Erie County (Patricia A. Maxwell, J.), entered March 28, 2006 in a proceeding pursuant to Family Court Act article 6. The order dismissed the petition.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously reversed on the law without costs, the petition is reinstated and the matter is remitted to Family Court, Erie County, for a hearing in accordance with the following memorandum: We agree with petitioner, the child’s biological mother, that Family Court erred in dismissing her petition seeking sole custody of the child without conducting a hearing. The child was residing with respondent, her paternal grandmother, pursuant to a consent order, and it is well established that "[extraordinary circumstances must be shown where, as here, the prior order granting custody of the child to [a nonparent] was made upon consent of the parties” (Matter of Katherine D. v Lawrence D., 32 AD3d 1350, 1351 [2006], lv denied 7 NY3d 717 [2006]; see Matter of Guinta v Doxtator, 20 AD3d 47, 53 [2005]; Matter of Gary G. v Roslyn P., 248 AD2d 980, 981 [1998]). Because there has been no prior judicial determination of extraordinary circumstances in this case, the court erred in dismissing the petition without conducting a hearing to determine whether such circumstances exist to deprive petitioner of her superior right to custody (see Gary G., 248 AD2d at 981) and, if so, whether a change in custody is in the child’s best interests (see Katherine D., 32 AD3d at 1351). We therefore reverse the order, reinstate the petition and remit the matter to Family Court for a hearing consistent with our decision. Present—Hurlbutt, J.P, Martoche, Smith, Centra and Peradotto, JJ.  