Opinion
103 CAF 19-01244
02-11-2021
In the Matter of Diane O. TOMLINSON and Leonard L. Tomlinson, Petitioners-Respondents, v. Charles HORTON, Respondent-Appellant. In the Matter of Diane O. Tomlinson and Leonard L. Tomlinson, Petitioners, v. Liane P. Tomlinson, Respondent.
CHARLES J. GREENBERG, AMHERST, FOR RESPONDENT-APPELLANT. AYOKA A. TUCKER, BUFFALO, ATTORNEY FOR THE CHILD.
CHARLES J. GREENBERG, AMHERST, FOR RESPONDENT-APPELLANT.
AYOKA A. TUCKER, BUFFALO, ATTORNEY FOR THE CHILD.
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, TROUTMAN, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: In this proceeding pursuant to Family Court Act article 6, respondent father appeals from an order that, inter alia, awarded sole custody of the subject 11-year-old child to petitioners, the child's maternal grandparents (grandparents), following a hearing. The father correctly concedes that his imprisonment in a federal facility for the eight years before the petition against him was filed constitutes the requisite extraordinary circumstances warranting an inquiry into whether it is in the best interests of the child to award the grandparents custody, and that the grandparents therefore met their burden of proof with respect to that issue (see Matter of Sharon B. v. Tiffany P. , 143 A.D.3d 573, 574, 39 N.Y.S.3d 440 [1st Dept. 2016] ; see generally Matter of Suarez v. Williams , 26 N.Y.3d 440, 446-448, 23 N.Y.S.3d 617, 44 N.E.3d 915 [2015] ).
Contrary to the father's contention, there is a sound and substantial basis in the record for Family Court's determination that the best interests of the child are served by awarding the grandparents sole custody of the child (see Matter of Mumford v. Milner , 183 A.D.3d 893, 895, 124 N.Y.S.3d 704 [2d Dept. 2020] ; see also Matter of Wojciulewicz v. McCauley , 166 A.D.3d 1489, 1490, 87 N.Y.S.3d 422 [4th Dept. 2018], lv denied 32 N.Y.3d 918, 2019 WL 1285119 [2019] ; see generally Eschbach v. Eschbach , 56 N.Y.2d 167, 171, 451 N.Y.S.2d 658, 436 N.E.2d 1260 [1982] ). The record establishes that the grandparents, without any financial contribution from the father, have provided the child with a loving and stable home environment since the birth of the child, and have provided for the child's physical, emotional, educational, and medical needs, as well as for the special therapeutic needs arising from the child's medical diagnoses of autism and attention deficit hyperactivity disorder.