Opinion
2011-12-27
In the Matter of Maria VARGAS, petitioner-respondent, v. Akeyzya VARGAS, appellant, et al., respondent.
Christopher J. Robles, Brooklyn, N.Y., for appellant. Danielle R. Petitti, New York, N.Y., for petitioner-respondent.
Christopher J. Robles, Brooklyn, N.Y., for appellant. Danielle R. Petitti, New York, N.Y., for petitioner-respondent.
Karen P. Simmons, Brooklyn, N.Y. (Heather Kalachman and Barbara H. Dildine of counsel), attorney for the child.
In a child custody proceeding pursuant to Family Court Act article 6, the mother appeals from an order of the Family Court, Kings County (Kennedy, J.), dated September 28, 2010, which, after a hearing, granted the paternal grandmother's petition for custody of the subject children.
ORDERED that the order is affirmed, without costs or disbursements.
In a custody proceeding between a parent and a nonparent, “the parent has the superior right to custody that cannot be denied unless the nonparent establishes that the parent has relinquished that right due to surrender, abandonment, persisting neglect, unfitness, or other like extraordinary circumstances” ( Matter of Dungee v. Simmons, 307 A.D.2d 312, 312–313, 762 N.Y.S.2d 514; see Matter of Ruiz v. Travis, 84 A.D.3d 1242, 924 N.Y.S.2d 456). The burden of establishing the existence of extraordinary circumstances is on the party seeking to deprive the parent of custody ( see Matter of Cambridge v. Cambridge, 13 A.D.3d 443, 786 N.Y.S.2d 558). Where extraordinary circumstances are present, the court must then consider the best interests of the children in awarding custody ( 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 Wright v. Wright, 81 A.D.3d 740, 741, 916 N.Y.S.2d 203).
Here, the Family Court properly determined that the paternal grandmother sustained her burden of demonstrating extraordinary circumstances ( see Matter of Barcellos v. Warren–Kidd, 57 A.D.3d 984, 870 N.Y.S.2d 443; Matter of Donohue v. Donohue, 44 A.D.3d 1042, 1043, 844 N.Y.S.2d 430). Moreover, the Family Court's determination that an award of custody to the paternal grandmother would be in the best interests of the subject children is supported by a sound and substantial basis in the record ( see Matter of Wright v. Wright, 81 A.D.3d at 741, 916 N.Y.S.2d 203; Matter of Barcellos v. Warren–Kidd, 57 A.D.3d at 985, 870 N.Y.S.2d 443).
The mother's remaining contention is without merit.