Opinion
2013-11-27
In the Matter of DIANA B. (Anonymous), respondent, v. LORRY B. (Anonymous), appellant.
Kent V. Moston, Hempstead, N.Y. (Jeremy L. Goldberg and David Bernstein of counsel), for appellant. Lois Schwaeber, Bethpage, N.Y. (Marc Andrew Kramer of counsel), for respondent.
Kent V. Moston, Hempstead, N.Y. (Jeremy L. Goldberg and David Bernstein of counsel), for appellant. Lois Schwaeber, Bethpage, N.Y. (Marc Andrew Kramer of counsel), for respondent.
Wayne T. Marks, Huntington, N.Y., attorney for the child.
REINALDO E. RIVERA, J.P., MARK C. DILLON, SHERI S. ROMAN, and ROBERT J. MILLER, JJ.
In a proceeding pursuant to Family Court Act article 6, the mother appeals, as limited by her brief, from so much of an order of the Family Court, Nassau County (Stack, J.H.O.), dated June 11, 2012, as, after a hearing, granted the maternal grandmother's amended petition for custody of the subject child.
ORDERED that the order is affirmed insofar as appealed from, without costs or disbursements.
In a child custody dispute between a parent and a nonparent, the parent has a superior right to custody that cannot be denied unless the nonparent establishes that the parent has relinquished that right due to surrender, abandonment, persistent neglect, unfitness, or other extraordinary circumstances ( see Matter of Bennett v. Jeffreys, 40 N.Y.2d 543, 548, 387 N.Y.S.2d 821, 356 N.E.2d 277; Matter of North v. Yeagley, 96 A.D.3d 949, 950, 946 N.Y.S.2d 508; Matter of Flores v. Flores, 91 A.D.3d 869, 869–870, 936 N.Y.S.2d 676; Matter of Ruiz v. Travis, 84 A.D.3d 1242, 924 N.Y.S.2d 456; Matter of Souza v. Bennett, 81 A.D.3d 836, 916 N.Y.S.2d 823; Matter of LaBorde v. Pennington, 60 A.D.3d 950, 951, 876 N.Y.S.2d 87; Matter of Silverman v. Wagschal, 35 A.D.3d 747, 748, 827 N.Y.S.2d 229; Matter of Dellolio v. Tracy, 35 A.D.3d 737, 737–738, 825 N.Y.S.2d 783; Matter of Campo v. Chapman, 24 A.D.3d 439, 805 N.Y.S.2d 121). Only if the nonparent meets this burden does the court determine whether the best interests of the child warrant awarding custody to the nonparent ( 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 Revis v. Marzan, 100 A.D.3d 1004, 1005, 954 N.Y.S.2d 217; Matter of North v. Yeagley, 96 A.D.3d at 950, 946 N.Y.S.2d 508; Matter of Jumper v. Hemphill, 75 A.D.3d 507, 508, 904 N.Y.S.2d 501; Matter of Wilson v. Smith, 24 A.D.3d 562, 563, 808 N.Y.S.2d 263; Matter of Campo v. Chapman, 24 A.D.3d at 440, 805 N.Y.S.2d 121).
Contrary to the mother's contention, the Family Court properly determined that the maternal grandmother sustained her burden of demonstrating the existence of extraordinary circumstances. The evidence before the Family Court, which included testimony regarding the unstable and unsafe living situation the mother created for the subject child through her drug use and her physically and verbally abusive behavior toward the child, demonstrated the existence of extraordinary circumstances ( see Matter of North v. Yeagley, 96 A.D.3d at 950, 946 N.Y.S.2d 508; Matter of Robinson v. McNair, 90 A.D.3d 759, 760, 934 N.Y.S.2d 232). Moreover, the Family Court's determination that an award of custody to the maternal grandmother would be in the best interests of the child is supported by a sound and substantial basis in the record ( see Matter of North v. Yeagley, 96 A.D.3d at 950, 946 N.Y.S.2d 508; Matter of Flores v. Flores, 91 A.D.3d at 870, 936 N.Y.S.2d 676).