Opinion
2016–09137 Docket Nos. V–14540–15 V–14542–15 V–14550–15 V–9865–15 V–9865–15/15A
03-21-2018
In the Matter of Sue I. DAVIS, et al., petitioners-respondents, v. Ryan DELENA, appellant. (Proceeding No. 1) In the Matter of Sue I. Davis, et al., petitioners-respondents, v. Suffolk County Department of Social Services, etc., respondent-respondent. (Proceeding No. 2) In the Matter of Sue I. Davis, et al., petitioners- respondents, v. Jennifer Davis, respondent-respondent (Proceeding No. 3). (and a related proceeding)
Gina M. Scelta, Huntington, NY, for appellant. Wayne J. Schaefer, LLC, Smithtown, NY, for petitioners-respondents. Arza Feldman, Uniondale, NY, for respondent-respondent Jennifer Davis. Laurette Mulry, Central Islip, N.Y. (John B. Belmonte of counsel), attorney for the child.
Gina M. Scelta, Huntington, NY, for appellant.
Wayne J. Schaefer, LLC, Smithtown, NY, for petitioners-respondents.
Arza Feldman, Uniondale, NY, for respondent-respondent Jennifer Davis.
Laurette Mulry, Central Islip, N.Y. (John B. Belmonte of counsel), attorney for the child.
ALAN D. SCHEINKMAN, P.J., JOHN M. LEVENTHAL, ROBERT J. MILLER, VALERIE BRATHWAITE NELSON, JJ.
DECISION & ORDER Appeal from an amended order of the Family Court, Suffolk County (Theresa Whelan, J.), dated August 4, 2016. The amended order, after a hearing, denied the petition of the paternal grandparents for custody of the subject child and granted the petition of the maternal grandparents for custody of the subject child.
ORDERED that the appeal from so much of the amended order as denied the petition of the paternal grandparents for custody of the subject child is dismissed, without costs or disbursements; and it is further,
ORDERED that the amended order is affirmed insofar as reviewed, without costs or disbursements.
These related child custody proceedings involve competing petitions for custody of the subject child by her paternal and maternal grandparents. The child's father consented to the petition for custody filed by his parents, while the child's mother consented to the petition for custody filed by her parents. In an amended order dated August 4, 2016, the Family Court granted the maternal grandparents' petition and denied the paternal grandparents' petition, determining that an award of custody to the maternal grandparents was in the child's best interests. The father appeals. Initially, the father's appeal from so much of the amended order as denied the petition of the paternal grandparents for custody of the subject child must be dismissed, as the father is not aggrieved by that part of the order (see CPLR 5511 ; Matter of Singh v. Cassadean, 121 A.D.3d 799, 799, 994 N.Y.S.2d 185 ; Matter of Brian JJ. v. Heather KK., 61 A.D.3d 1285, 878 N.Y.S.2d 482 ).
The father's contention that the maternal grandparents failed to meet their burden of proving the existence of extraordinary circumstances in order to establish their standing to seek custody of the subject child (see Matter of Bennett v. Jeffreys, 40 N.Y.2d 543, 387 N.Y.S.2d 821, 356 N.E.2d 277 ; Matter of Maddox v. Maddox, 141 A.D.3d 529, 35 N.Y.S.3d 264 ) is improperly raised for the first time on appeal (see Matter of Hezekiah L. v. Pamela A.L., 92 A.D.3d 506, 938 N.Y.S.2d 87 ; Matter of Isaiah O. v. Andrea P., 287 A.D.2d 816, 731 N.Y.S.2d 273 ).
In a child custody proceeding, the court's paramount concern is to determine what placement, based on the totality of the circumstances, is in the best interests of the child (see Friederwitzer v. Friederwitzer, 55 N.Y.2d 89, 94, 447 N.Y.S.2d 893, 432 N.E.2d 765 ). In determining the best interests of the child, a court should take a variety of factors into consideration to determine "what will best promote [the child's] welfare and happiness" ( Eschbach v. Eschbach, 56 N.Y.2d 167, 171, 451 N.Y.S.2d 658, 436 N.E.2d 1260 ; see Friederwitzer v. Friederwitzer, 55 N.Y.2d at 94–95, 447 N.Y.S.2d 893, 432 N.E.2d 765 ). These factors include, but are not limited to: (1) which alternative will best promote stability for the child; (2) the available home environments; (3) the past performance of each parent; (4) each parent's relative fitness, including his or her ability to guide the child, provide for the child's overall well-being, and foster the child's relationship with the noncustodial parent; (5) previous placement of the child; and (6) the child's desires (see Matter of Supangkat v. Torres, 101 A.D.3d 889, 890, 954 N.Y.S.2d 915 ; see also Eschbach v. Eschbach, 56 N.Y.2d at 171–173, 451 N.Y.S.2d 658, 436 N.E.2d 1260 ; Friederwitzer v. Friederwitzer, 55 N.Y.2d at 94, 447 N.Y.S.2d 893, 432 N.E.2d 765 ). While a Family Court's determination of custody is entitled to great weight on appeal, this Court's authority is as broad as that of the hearing court, and it will not allow a custody determination to stand where it lacks a sound and substantial basis in the record (see Matter of Venette v. Rhodes, 301 A.D.2d 608, 754 N.Y.S.2d 36 ; Matter of Fowler v. Rivera, 296 A.D.2d 409, 745 N.Y.S.2d 457 ). Contrary to the father's contention, the Family Court's determination that it was in the child's best interests to award custody to her maternal grandparents has a sound and substantial basis in the record (see Matter of Durgala v. Batrony, 154 A.D.3d 1115, 62 N.Y.S.3d 594 ; Matter of Gardner v. Gardner, 69 A.D.3d 1243, 893 N.Y.S.2d 698 ; Matter of DePaola v. Corrales, 303 A.D.2d 586, 756 N.Y.S.2d 625 ).
SCHEINKMAN, P.J., LEVENTHAL, MILLER and BRATHWAITE NELSON, JJ., concur.