Opinion
554 CAF 17–01418
06-07-2019
In the Matter of James HILTON and Ethel Hilton, Petitioners–Respondents, v. Kyle HILTON, Respondent–Respondent, and Courtney Cirello, Respondent–Appellant.
D.J. & J.A. CIRANDO, PLLC, SYRACUSE (REBECCA L. KONST OF COUNSEL), FOR RESPONDENT–APPELLANT. DAVIS LAW OFFICE PLLC, OSWEGO (STEPHANIE N. DAVIS OF COUNSEL), FOR RESPONDENT–RESPONDENT. JOHN W. SPRING, JR., PHOENIX, ATTORNEY FOR THE CHILD.
D.J. & J.A. CIRANDO, PLLC, SYRACUSE (REBECCA L. KONST OF COUNSEL), FOR RESPONDENT–APPELLANT.
DAVIS LAW OFFICE PLLC, OSWEGO (STEPHANIE N. DAVIS OF COUNSEL), FOR RESPONDENT–RESPONDENT.
JOHN W. SPRING, JR., PHOENIX, ATTORNEY FOR THE CHILD.
PRESENT: WHALEN, P.J., SMITH, CARNI, CURRAN, AND TROUTMAN, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs and the matter is remitted to Family Court, Oswego County, for a hearing on the petition filed July 13, 2016.
Memorandum: In this proceeding pursuant to Family Court Act article 6, respondent mother appeals from an order that, among other things, granted the petition of the nonparent petitioners by awarding shared legal custody of the subject child to petitioners and the mother and granting physical custody of the child to petitioners. Petitioners are the parents of the child's putative father. They sought custody of the subject child, alleging that the mother no longer resided in New York and had left the child with them for nearly a year without significant contact. The mother returned to New York and was incarcerated here shortly after the petition was filed. Thereafter, Family Court issued a temporary custody order on the mother's consent, granting temporary physical custody of the child to petitioners. After the mother's release from prison, the order was amended to grant the mother supervised visitation with the child. At a subsequent court appearance scheduled to address the status of that visitation as well as a pending paternity petition, which the mother failed to attend, the court found the mother in default and granted the custody petition over the objection of the mother's counsel.
Initially, we agree with the mother that the court erred in entering a final custody order upon the mother's "default" based on her failure to attend the scheduled appearance to review visitation and the pending paternity proceeding. Where, as here, "a party fails to appear [in court on a scheduled date] but is represented by counsel, the order is not one entered upon the default of the aggrieved party and appeal is not precluded" ( Matter of Pollard v. Pollard , 63 A.D.3d 1628, 1628, 881 N.Y.S.2d 564 [4th Dept. 2009] [internal quotation marks omitted]; see Matter of David A.A. v. Maryann A. , 41 A.D.3d 1300, 1300, 837 N.Y.S.2d 479 [4th Dept. 2007] ; Matter of Sales v. Gisendaner , 272 A.D.2d 997, 997, 707 N.Y.S.2d 562 [4th Dept. 2000] ). We further agree with the mother that the court erred in granting the petition without holding a hearing to determine whether petitioners have established the existence of extraordinary circumstances and, if so, to evaluate the child's best interests. "A parent's right to be heard on a matter of child custody is fundamental and ‘not to be disregarded absent a convincing showing of waiver’ " ( Sales , 272 A.D.2d at 997, 707 N.Y.S.2d 562 ; see generally Matter of Kendra M. , 175 A.D.2d 657, 658, 572 N.Y.S.2d 583 [4th Dept. 1991] ). Moreover, "[i]t is well established that, as 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 because of surrender, abandonment, persisting neglect, unfitness or other like extraordinary circumstances" ( Matter of Katherine D. v. Lawrence D. , 32 A.D.3d 1350, 1351, 822 N.Y.S.2d 349 [4th Dept. 2006], lv denied 7 N.Y.3d 717, 827 N.Y.S.2d 688, 860 N.E.2d 990 [2006] [internal quotation marks omitted] ) and further establishes that an award of custody to the nonparent is in the best interests of the child (see Matter of Griffin v. Griffin , 117 A.D.3d 1570, 1570–1571, 985 N.Y.S.2d 393 [4th Dept. 2014] ). "The burden of proving extraordinary circumstances rests on the nonparent, and the mere existence of a prior consent order of custody in favor of the nonparent is not sufficient to demonstrate extraordinary circumstances" ( Matter of Mercado v. Mercado , 64 A.D.3d 951, 952, 883 N.Y.S.2d 605 [3d Dept. 2009] ). Inasmuch as the court erred in depriving the mother of custody without conducting the requisite evidentiary hearing (see Griffin , 117 A.D.3d at 1571, 985 N.Y.S.2d 393 ), we reverse and remit the matter to Family Court for a hearing on the custody petition. We note that, pending determination of the petition, the order entered October 25, 2016, granting temporary custody of the child to petitioners, as amended by the order entered May 18, 2017, remains in effect.