Opinion
75 CAF 18–02298
05-01-2020
In the Matter of Lisa DRISCOLL, Petitioner–Respondent, v. Timothy MACK, Respondent–Respondent, and Sarah Driscoll, Respondent–Appellant.
D.J. & J.A. CIRANDO, PLLC, SYRACUSE (REBECCA L. KONST OF COUNSEL), FOR RESPONDENT–APPELLANT. NORMAN J. CHIRCO, AUBURN, FOR PETITIONER–RESPONDENT. HEIDI S. CONNOLLY, SKANEATELES, ATTORNEY FOR THE CHILD. CHARLES M. THOMAS, AUBURN, ATTORNEY FOR THE CHILD.
D.J. & J.A. CIRANDO, PLLC, SYRACUSE (REBECCA L. KONST OF COUNSEL), FOR RESPONDENT–APPELLANT.
NORMAN J. CHIRCO, AUBURN, FOR PETITIONER–RESPONDENT.
HEIDI S. CONNOLLY, SKANEATELES, ATTORNEY FOR THE CHILD.
CHARLES M. THOMAS, AUBURN, ATTORNEY FOR THE CHILD.
PRESENT: WHALEN, P.J., CARNI, BANNISTER, 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, petitioner maternal grandmother (grandmother) filed a petition, dated April 11, 2016, seeking to modify a prior custody order, pursuant to which respondent mother would have obtained primary physical custody of the subject children on July 1, 2016. Respondent mother appeals from an order that, inter alia, modified the prior order, to which the parties had stipulated, by awarding physical custody of the children to the grandmother.
We reject the mother's contention that the record does not support a finding of extraordinary circumstances necessary to justify an award of custody to a nonparent. The grandmother had the burden of establishing that extraordinary circumstances exist even though the prior order, which awarded her primary physical custody of the children for a period of time, was made upon consent of the parties (see 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] ). Here, the grandmother met that burden. It is undisputed that the children have lived in the grandmother's home for approximately seven years or more. In addition, the record reflects that, despite the mother having scheduled visitation with the children, she has failed to resume her parental role in their lives (see Matter of Suarez v. Williams, 26 N.Y.3d 440, 448, 23 N.Y.S.3d 617, 44 N.E.3d 915 [2015] ; Matter of Orlowski v. Zwack, 147 A.D.3d 1445, 1446, 46 N.Y.S.3d 770 [4th Dept. 2017] ).
Once the grandmother established that extraordinary circumstances existed, she had the burden, as petitioner, of establishing that a change in circumstances had occurred since entry of the prior order (see Matter of McNeil v. Deering, 120 A.D.3d 1581, 1582–1583, 992 N.Y.S.2d 810 [4th Dept. 2014], lv denied 24 N.Y.3d 911, 2014 WL 7152330 [2014] ; Matter of Howard v. McLoughlin, 64 A.D.3d 1147, 1147–1148, 881 N.Y.S.2d 766 [4th Dept. 2009] ). To the extent that our prior cases suggest that a change in circumstances analysis is not required here, those cases should no longer be followed (see e.g. Matter of Tamika C.P. v. Denise M., 39 A.D.3d 1213, 1214, 834 N.Y.S.2d 772 [4th Dept. 2007] ; Katherine D., 32 A.D.3d at 1351, 822 N.Y.S.2d 349 ; Matter of Ruggieri v. Bryan, 23 A.D.3d 991, 992, 803 N.Y.S.2d 839 [4th Dept. 2005] ). We reject the mother's contention that the grandmother failed to make the requisite showing of a change in circumstances sufficient to warrant an inquiry into whether modification of the prior order is in the best interests of the children. "[A]n existing [custody] arrangement that is based upon a stipulation between the parties is entitled to less weight than a disposition after a plenary trial" ( Matter of Alexandra H. v. Raymond B.H., 37 A.D.3d 1125, 1126, 829 N.Y.S.2d 778 [4th Dept. 2007] [internal quotation marks omitted] ). Here, the parties' stipulation required the mother to assume additional and greater parental responsibilities during a period of approximately five months, at the conclusion of which the mother was to obtain primary physical custody of the children. However, the record establishes that the mother increasingly failed to attend scheduled visitation with her children during that period and, instead, often chose to spend time with her boyfriend. She also often exhibited poor judgment as evidenced by, inter alia, her acknowledgment of violence in her home with the children present (see Matter of Fountain v. Fountain, 130 A.D.3d 1107, 1108, 12 N.Y.S.3d 641 [3d Dept. 2015] ). Moreover, Family Court observed firsthand her deteriorating mental condition (see Matter of Andrew L. v. Michelle M., 140 A.D.3d 1240, 1241–1242, 34 N.Y.S.3d 638 [3d Dept. 2016] ).
Finally, we conclude that the court properly determined that it is in the children's best interests for the grandmother to have physical custody (see generally Prall v. Prall, 156 A.D.3d 1351, 1352, 67 N.Y.S.3d 380 [4th Dept. 2017] ; Matter of Walker v. Cameron, 88 A.D.3d 1307, 1308, 930 N.Y.S.2d 385 [4th Dept. 2011] ). The grandmother has provided a stable living situation for the children, and the children wish to remain in her home.