Opinion
2021-01106 Docket Nos. V-01692-19/19A/20B, V-11208-16/19C/19D, V-11209-16/19B/19D/19E/19F/20C
02-23-2022
In the Matter of BRITTANY N., petitioner-appellant, v. ANTHONY D., et al., respondents-respondents. (Proceeding No. 1) In the Matter of Michael D., petitioner, v. Anthony D., et al., respondents. (Proceeding No. 2) In the Matter of Anthony D., et al., petitioners, v. Brittany N., et al., respondents. (Proceeding No. 3)
Law Offices of Michael J. Alber, P.C., Huntington Station, NY (Michael Alber and Christina J. Nankervis of counsel), for petitioner-appellant. Long Tuminello, LLP, Bay Shore, NY (Kevin J. Werner and Patricia A. Deegan of counsel), for respondents-respondents. Laurette D. Mulry, Central Islip, NY (John B. Belmonte of counsel), attorney for the child.
Law Offices of Michael J. Alber, P.C., Huntington Station, NY (Michael Alber and Christina J. Nankervis of counsel), for petitioner-appellant.
Long Tuminello, LLP, Bay Shore, NY (Kevin J. Werner and Patricia A. Deegan of counsel), for respondents-respondents.
Laurette D. Mulry, Central Islip, NY (John B. Belmonte of counsel), attorney for the child.
MARK C. DILLON, J.P., COLLEEN D. DUFFY, VALERIE BRATHWAITE NELSON, SHERI S. ROMAN, JJ.
DECISION & ORDER In related proceedings pursuant to Family Court Act article 6, the mother appeals from an order of the Family Court, Suffolk County (Caren Loguercio, J.), dated December 4, 2020. The order, insofar as appealed from, after a hearing, denied that branch of the mother's petition which was to modify a prior order of the same court dated August 9, 2016, so as to award her sole legal and physical custody of the subject child.
ORDERED that the order dated December 4, 2020, is affirmed insofar as appealed from, without costs or disbursements. The mother and the father are the parents of a child born in 2015. As a result of their substance abuse, a neglect proceeding was commenced against the parents, and the child was placed with the paternal grandparents approximately two weeks after his birth. In an order dated August 9, 2016, the Family Court, on consent of the parents, awarded sole legal and physical custody of the child to the paternal grandparents, with supervised parental access to the parents as agreed by the parties (hereinafter the custody order).
During the first year of the child's life, the mother lived with the father across the street from the grandparents and the child. After the relationship between the father and the mother ended in June 2016, the mother saw the child infrequently. In July 2017, the mother moved to California. After returning to New York in May 2018, she received substance abuse treatment, and has remained sober ever since. The mother resumed supervised parental access with the child in the summer of 2018. In September 2018, she filed a petition to modify the custody order so as to award her sole legal and physical custody of the child, or in the alternative, for increased parental access. By order dated December 4, 2020, the Family Court, after a hearing, inter alia, denied that branch of the mother's petition which was to modify the custody order so as to award her sole legal and physical custody of the child. The mother appeals.
"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" ( Matter of Bailey v. Carr, 125 A.D.3d 853, 853, 4 N.Y.S.3d 121 ; 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 Maiyasha J.M. [Sherryann Z.-Asheena P.], 183 A.D.3d 742, 743, 121 N.Y.S.3d 680 ). This rule applies even when, as here, a prior order awarding custody to the nonparent has been issued upon consent (see Matter of Gunther v. Brown, 148 A.D.3d 889, 889, 49 N.Y.S.3d 178 ; Matter of Lallas v. Bolin, 134 A.D.3d 1038, 1039, 21 N.Y.S.3d 699 ; Matter of Mercado v. Smith, 133 A.D.3d 762, 762, 20 N.Y.S.3d 140 ). However, a nonparent may obtain custody of a child as against a parent where the nonparent establishes the existence of extraordinary circumstances (see Matter of Suarez v. Williams, 26 N.Y.3d 440, 446, 23 N.Y.S.3d 617, 44 N.E.3d 915 ; Matter of Bennett v. Jeffreys, 40 N.Y.2d at 546, 387 N.Y.S.2d 821, 356 N.E.2d 277 ; Matter of Mooney v. Mooney, 198 A.D.3d 784, 785, 156 N.Y.S.3d 263 ).
"Pursuant to Domestic Relations Law § 72, governing a grandparent's request for custody of a minor child, an ‘extended disruption of custody’ between the child and the parent ‘shall constitute an extraordinary circumstance’ " ( Matter of Mooney v. Mooney, 198 A.D.3d at 785, 156 N.Y.S.3d 263, quoting Domestic Relations Law § 72[2][a] ). "An extended disruption of custody includes a prolonged separation between a parent and a child for at least 24 continuous months during which the parent voluntarily relinquished care and control of the child and the child resided in the household of a grandparent" ( Matter of Sellers v. Brown, 155 A.D.3d 1047, 1048, 65 N.Y.S.3d 207 ; see Domestic Relations Law § 72[2][b] ). "If [a] grandparent establishes standing by demonstrating the existence of extraordinary circumstances, the court shall then make an award of custody based on the best interests of the child" ( Matter of Conroy v. Conroy, 160 A.D.3d 727, 729, 73 N.Y.S.3d 611 ; see Matter of Suarez v. Williams, 26 N.Y.3d at 446, 23 N.Y.S.3d 617, 44 N.E.3d 915 ; Matter of Mooney v. Mooney, 198 A.D.3d at 786, 156 N.Y.S.3d 263 ).
Here, the Family Court properly determined that the paternal grandparents sustained their burden of demonstrating the existence of extraordinary circumstances, based on an extended disruption of custody of more than two years (see Matter of Mooney v. Mooney, 198 A.D.3d at 786, 156 N.Y.S.3d 263 ; Matter of Mumford v. Milner, 183 A.D.3d 893, 895, 124 N.Y.S.3d 704 ; Matter of Bruen v. Merla–Profenna, 181 A.D.3d 592, 593, 120 N.Y.S.3d 417 ). Additionally, the court's determination that the best interests of the child would be served by an award of sole legal and physical custody to the paternal grandparents, his primary caregivers for essentially his entire life, subject to liberal specified parental access with the mother, is supported by a sound and substantial basis in the record and we decline to disturb it (see Matter of Mumford v. Milner, 183 A.D.3d at 895, 124 N.Y.S.3d 704 ; Matter of Lewis v. Speaker, 143 A.D.3d 822, 824, 39 N.Y.S.3d 200 ; Matter of DiBenedetto v. DiBenedetto, 108 A.D.3d 531, 533, 968 N.Y.S.2d 194 ).
DILLON, J.P., DUFFY, BRATHWAITE NELSON and ROMAN, JJ., concur.