Opinion
2013-05-1
In the Matter of Judy ANDRACCHI, appellant, v. John REETZ, respondent.
Rhonda R. Weir, Brooklyn, N.Y., for appellant. William A. Sheeckutz, East Meadow, N.Y., attorney for the child.
Rhonda R. Weir, Brooklyn, N.Y., for appellant. William A. Sheeckutz, East Meadow, N.Y., attorney for the child.
PETER B. SKELOS, J.P., DANIEL D. ANGIOLILLO, SHERI S. ROMAN, and ROBERT J. MILLER, JJ.
In a child custody proceeding pursuant to Family Court Act article 6, the petitioner appeals from an order of the Family Court, Nassau County (Dane, J.), dated February 24, 2012, which granted the father's application, made at the close of her case, to dismiss her petition for custody of the subject child.
ORDERED that the order is affirmed, without costs or disbursements.
After the death of the subject child's mother, the petitioner, the child's maternal aunt, commenced this proceeding seeking custody of the child. After conducting a hearing on the issue of extraordinary circumstances, the Family Court granted the application of the child's father, made at the close of the petitioner's case, to dismiss the petition.
As between a parent and a nonparent, the parent has a superior right to custody which cannot be denied absent a showing of surrender, abandonment, persisting neglect, unfitness, or other similar extraordinary circumstances ( see Matter of Bennett v. Jeffreys, 40 N.Y.2d 543, 544, 387 N.Y.S.2d 821, 356 N.E.2d 277;Matter of Revis v. Marzan, 100 A.D.3d 1004, 954 N.Y.S.2d 217;Matter of North v. Yeagley, 96 A.D.3d 949, 946 N.Y.S.2d 508). A nonparent seeking custody of a child against the wishes of a parent has the initial burden of establishing the existence of extraordinary circumstances ( see Matter of Bennett v. Jeffreys, 40 N.Y.2d at 548, 387 N.Y.S.2d 821, 356 N.E.2d 277;Matter of Ruiz–Thomas v. Ruiz, 96 A.D.3d 859, 860, 946 N.Y.S.2d 606;Matter of Flores v. Flores, 91 A.D.3d 869, 936 N.Y.S.2d 676). Once extraordinary circumstances are found, the court must then make the disposition that is in the best interests of the child ( see Matter of Bennett v. Jeffreys, 40 N.Y.2d at 548, 387 N.Y.S.2d 821, 356 N.E.2d 277;Matter of North v. Yeagley, 96 A.D.3d at 950, 946 N.Y.S.2d 508;Matter of Ruiz–Thomas v. Ruiz, 96 A.D.3d at 860, 946 N.Y.S.2d 606;Matter of Esposito v. Shannon, 32 A.D.3d 471, 472, 823 N.Y.S.2d 159).
Here, the petitioner failed to establish the existence of extraordinary circumstances sufficient to warrant a hearing with regard to the child's best interests ( see Matter of Revis v. Marzan, 100 A.D.3d at 1004, 954 N.Y.S.2d 217;Matter of Brown v. Zuzierla, 73 A.D.3d 765, 900 N.Y.S.2d 414;Matter of Tolbert v. Scott, 42 A.D.3d 548, 840 N.Y.S.2d 112).
The petitioner's argument that the Family Court erred in failing to, sua sponte, take judicial notice of prior orders issued in a related Family Court Act article 10 proceeding is unpreserved for appellate review ( seeCPLR 5501). In any event, the court did consider the petitioner's testimony which related to the orders issued in that case.
Under the circumstances presented, the Family Court providently exercised its discretion in declining to conduct an in-camera interview of the child ( see Matter of Lincoln v. Lincoln, 24 N.Y.2d 270, 273–274, 299 N.Y.S.2d 842, 247 N.E.2d 659;Matter of Giannoulakis v. Kounalis, 97 A.D.3d 748, 948 N.Y.S.2d 415;Matter of Martinez v. Hyatt, 86 A.D.3d 571, 927 N.Y.S.2d 375).