Opinion
881 CAF 21-00903
12-23-2022
In the Matter of Michael C. WELLS, Petitioner-Appellant, v. Dawn M. FREELAND and Jacqueline M. Freeland, Respondents-Respondents.
CHARLES J. GREENBERG, AMHERST, FOR PETITIONER-APPELLANT. LAW OFFICE OF VERONICA REED, SCHENECTADY (VERONICA REED OF COUNSEL), FOR RESPONDENT-RESPONDENT DAWN M. FREELAND. GARY MULDOON, ROCHESTER, ATTORNEY FOR THE CHILDREN.
CHARLES J. GREENBERG, AMHERST, FOR PETITIONER-APPELLANT.
LAW OFFICE OF VERONICA REED, SCHENECTADY (VERONICA REED OF COUNSEL), FOR RESPONDENT-RESPONDENT DAWN M. FREELAND.
GARY MULDOON, ROCHESTER, ATTORNEY FOR THE CHILDREN.
PRESENT: WHALEN, P.J., PERADOTTO, LINDLEY, WINSLOW, AND BANNISTER, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the order so appealed from is unanimously modified on the law by reinstating the petition seeking modification of an order of custody and visitation and as modified the order is affirmed without costs and the matter is remitted to Family Court, Seneca County, for further proceedings in accordance with the following memorandum: Petitioner father appeals from an order granting the motion of respondent Dawn M. Freeland (grandmother), made at the close of the father's case at a hearing, to dismiss his petition seeking modification of a prior stipulated order of custody and visitation, and his petition alleging that the grandmother violated that prior order. The motion was joined by respondent Jacqueline M. Freeland (mother) and the Attorney for the Children. Pursuant to the prior order, the parties share joint legal custody of the subject children, with the grandmother having primary physical custody and the mother and the father having visitation under separate visitation schedules.
Initially, we reject the father's contention that Family Court erred in granting the motion insofar as it sought to dismiss his violation petition. The court properly determined that the father failed to establish by clear and convincing evidence that the grandmother violated the terms of the prior order with respect to the father's visitation (see generally Matter of Cooley v. Roloson , 201 A.D.3d 1299, 1299, 158 N.Y.S.3d 703 [4th Dept. 2022] ).
With respect to the modification petition, we conclude that the court erred in requiring the father to prove that there had been a change in circumstances prior to making a determination regarding extraordinary circumstances (see Matter of Byler v. Byler , 185 A.D.3d 1403, 1404, 128 N.Y.S.3d 385 [4th Dept. 2020] ; Matter of Wolfford v. Stephens , 145 A.D.3d 1569, 1569, 43 N.Y.S.3d 837 [4th Dept. 2016] ; Matter of Michael G.B. v. Angela L.B. , 219 A.D.2d 289, 292, 642 N.Y.S.2d 452 [4th Dept. 1996] ). "It is well settled 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 Wilson v. Hayward , 128 A.D.3d 1475, 1476, 8 N.Y.S.3d 803 [4th Dept. 2015], lv denied 26 N.Y.3d 909, 2015 WL 6143567 [2015] [internal quotation marks omitted]; see Wolfford , 145 A.D.3d at 1569, 43 N.Y.S.3d 837 ). "The nonparent has the burden of establishing that extraordinary circumstances exist," and "it is only after a court has determined that extraordinary circumstances exist that the custody inquiry becomes ‘whether there has been a change [in] circumstances [warranting further inquiry into] the best interests of the child[ren]’ " ( Matter of Howard v. McLoughlin , 64 A.D.3d 1147, 1147-1148, 881 N.Y.S.2d 766 [4th Dept. 2009] ; see Wolfford , 145 A.D.3d at 1569-1570, 43 N.Y.S.3d 837 ; Wilson , 128 A.D.3d at 1477, 8 N.Y.S.3d 803 ). "The foregoing rule applies even if there is an existing order of custody concerning th[e] child[ren] unless there is a prior determination that extraordinary circumstances exist" ( Matter of Gary G. v. Roslyn P. , 248 A.D.2d 980, 981, 670 N.Y.S.2d 270 [4th Dept. 1998] ). Here, "there is no indication in the record that, in the history of the parties’ litigation, the court previously made a determination of extraordinary circumstances divesting the [father] of [his] superior right to custody" ( Howard , 64 A.D.3d at 1148, 881 N.Y.S.2d 766 ). Furthermore, "the record is insufficient to enable us to make our own determination with respect to whether extraordinary circumstances exist" ( id. ).
We therefore modify the order on appeal by reinstating the modification petition, and we remit the matter to Family Court to determine, following a hearing if necessary, whether extraordinary circumstances exist (see Wolfford , 145 A.D.3d at 1570, 43 N.Y.S.3d 837 ; see also Matter of Vazquez v. Velez , 90 A.D.3d 1559, 1559, 934 N.Y.S.2d 907 [4th Dept. 2011] ; Howard , 64 A.D.3d at 1148, 881 N.Y.S.2d 766 ).