Opinion
2021-03584 V-4185-19
06-09-2021
In the Matter of Karen Grosso, appellant, v. Dyshawn Lamb, respondent.
Frederic C. Foster, P.C., Westhampton, NY (Rick Foster of counsel), for appellant. Amy E. King, Riverhead, NY, for respondent. Arza Rayches Feldman, Manhasset, NY, attorney for the child.
Frederic C. Foster, P.C., Westhampton, NY (Rick Foster of counsel), for appellant.
Amy E. King, Riverhead, NY, for respondent.
Arza Rayches Feldman, Manhasset, NY, attorney for the child.
WILLIAM F. MASTRO, J.P. LEONARD B. AUSTIN SYLVIA O. HINDS-RADIX FRANCESCA E. CONNOLLY, JJ.
DECISION & ORDER
In a proceeding pursuant to Family Court Act article 6, the maternal great aunt appeals from an order of the Family Court, Suffolk County (George F. Harkin, J.), dated May 26, 2020. The order, after a hearing, dismissed the maternal great aunt's petition for custody of the subject child for lack of standing.
ORDERED that the order is affirmed, without costs or disbursements.
The subject child, born in 2016, lived together with her parents until the mother's death in February 2019. Since that time, the child has resided with the father. In March 2019, the petitioner, who is the child's maternal great aunt, commenced this proceeding seeking custody of the child. The Family Court conducted a hearing to determine if extraordinary circumstances existed to confer standing upon the petitioner. After the hearing, the court dismissed the petition for lack of standing, finding that the petitioner had failed to establish the existence of extraordinary circumstances. The petitioner 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, citing Matter of Bennett v Jeffreys, 40 N.Y.2d 543, 548; see Matter of Maddox v Maddox, 141 A.D.3d 529, 529). "The burden of proof is on the nonparent to prove the existence of extraordinary circumstances in order to demonstrate standing when seeking custody against a child's parent" (Matter of Maddox v Maddox, 141 A.D.3d at 529 [internal quotation marks omitted]; see Matter of Silverman v Wagschal, 35 A.D.3d 747, 748).
Here, the Family Court's determination that the petitioner failed to establish the existence of extraordinary circumstances conferring standing to seek custody of the child was supported by a sound and substantial basis in the record and will not be disturbed (see Matter of Bailey v Carr, 125 A.D.3d at 853-854; Matter of Jiminez v Jiminez, 57 A.D.3d 781, 781; see also Matter of Aylward v Bailey, 91 A.D.3d 1135; cf. Matter of Diana B. v Lorry B., 111 A.D.3d 927, 928; Matter of North v Yeagley, 96 A.D.3d 949, 950; Matter of Cockrell v Burke, 50 A.D.3d 895, 896-897). Contrary to the petitioner's contention, without proof of such extraordinary circumstances, an inquiry into the best interests of the child was not triggered (see Matter of Maddox v Maddox, 141 A.D.3d at 529; see also Matter of Bailey v Carr, 125 A.D.3d at 853; Matter of Esposito v Shannon, 32 A.D.3d 471, 473).
MASTRO, J.P., AUSTIN, HINDS-RADIX and CONNOLLY, JJ., concur.