Opinion
184 CAF 20-01429
06-03-2022
In the Matter of Eric M. KENNELL, Sr., Petitioner-Respondent, v. Kayla L. TRUSTY, Respondent-Appellant, and Daniel Dobbs, Respondent-Respondent. In the Matter of Eric M. Kennell, Sr., Petitioner-Respondent, v. Kayla L. Trusty, Respondent-Appellant.
PAUL B. WATKINS, FAIRPORT, FOR RESPONDENT-APPELLANT. MARY HOPE BENEDICT, BATH, ATTORNEY FOR THE CHILD.
PAUL B. WATKINS, FAIRPORT, FOR RESPONDENT-APPELLANT.
MARY HOPE BENEDICT, BATH, ATTORNEY FOR THE CHILD.
PRESENT: WHALEN, P.J., SMITH, NEMOYER, WINSLOW, AND BANNISTER, 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 filed an amended petition seeking to modify a prior custody order entered on the consent of petitioner and respondent mother. The prior custody order, inter alia, awarded the mother and petitioner joint custody of the subject child with physical placement with the mother. The mother now appeals from an order that, inter alia, modified the prior custody order by awarding primary physical placement of the child to petitioner, who is not a parent of the child. The mother has seven children, and petitioner is the father and custodial parent of the youngest two of those children.
We reject the mother's contention that petitioner failed to make the requisite showing that extraordinary circumstances existed to warrant an inquiry into whether an award of custody to a nonparent is in the child's best interests. "[A]s 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 Howard v. McLoughlin , 64 A.D.3d 1147, 1147, 881 N.Y.S.2d 766 [4th Dept. 2009] [internal quotation marks omitted]; see Matter of Suarez v. Williams , 26 N.Y.3d 440, 446, 23 N.Y.S.3d 617, 44 N.E.3d 915 [2015] ). "The nonparent has the burden of establishing that extraordinary circumstances exist even where, as here, ‘the prior order granting custody of the child to [the] nonparent[ ] was made upon consent of the parties’ " ( Howard , 64 A.D.3d at 1147, 881 N.Y.S.2d 766 ; 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, a determination in a dispositional order entered in a Family Court Act article 10 proceeding that the mother had neglected the subject child " ‘supplied the threshold showing that extraordinary circumstances’ " exist ( Matter of Jackson v. Euson , 153 A.D.3d 1655, 1656, 61 N.Y.S.3d 415 [4th Dept. 2017] ).
We agree with the mother that once petitioner established that extraordinary circumstances existed, Family Court erred by failing to determine whether petitioner met his burden of establishing that a change in circumstances had occurred since entry of the prior order granting the mother and petitioner joint custody of the child (see generally Matter of Driscoll v. Mack , 183 A.D.3d 1229, 1230, 121 N.Y.S.3d 706 [4th Dept. 2020], lv denied 35 N.Y.3d 910, 2020 WL 5047496 [2020] ; 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] ). Nevertheless, " ‘this Court has the authority to independently review the record’ to ascertain whether the requisite change in circumstances existed" ( Matter of Curry v. Reese , 145 A.D.3d 1475, 1475, 44 N.Y.S.3d 279 [4th Dept. 2016] ). Here, petitioner established that since the time of the prior order, the child was subjected to physical aggression in the mother's home by some of the mother's other children. Further, while in the mother's care, the child had many unexplained absences from school and the mother failed to assist the child with his homework resulting in his need to repeat second grade. Moreover, the mother failed to comply with requirements of the prior custody order to ensure that the child is, inter alia, properly bathed and groomed and to maintain a safe and sanitary home. In addition, while the child's preference is not dispositive, " ‘it is a factor to consider in determining whether there has been a change in circumstances’ " ( Matter of Cheney v. Cheney , 118 A.D.3d 1358, 1359, 987 N.Y.S.2d 531 [4th Dept. 2014] ). Here, the child expressed a strong preference to live with petitioner. Thus, we conclude that petitioner established the requisite change in circumstances (see generally Driscoll , 183 A.D.3d at 1230, 121 N.Y.S.3d 706 ; Curry , 145 A.D.3d at 1476, 44 N.Y.S.3d 279 ).
Finally, we conclude that the court properly determined that it is in the child's best interests for petitioner to have primary physical placement of the child (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] ). In addition to the evidence described above, the record establishes, inter alia, that petitioner has a close bond with the child and petitioner has primary physical custody of two of he child's siblings.