Opinion
532 CAF 18–00023
07-05-2019
In the Matter of Marlyn MARTINEZ–SAROFF, and David Saroff, Petitioners–Respondents, v. Kyla MARTINEZ–SAROFF, Respondent–appellant.
DAVID J. PAJAK, ALDEN, FOR RESPONDENT–APPELLANT. LAW OFFICE OF REBECCA J. TALMUD, WILLIAMSVILLE (REBECCA J. TALMUD OF COUNSEL), FOR PETITIONERS–RESPONDENTS. WILLIAM D. BRODERICK, JR., ELMA, ATTORNEY FOR THE CHILD.
DAVID J. PAJAK, ALDEN, FOR RESPONDENT–APPELLANT.
LAW OFFICE OF REBECCA J. TALMUD, WILLIAMSVILLE (REBECCA J. TALMUD OF COUNSEL), FOR PETITIONERS–RESPONDENTS.
WILLIAM D. BRODERICK, JR., ELMA, ATTORNEY FOR THE CHILD.
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, TROUTMAN, AND WINSLOW, 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, respondent mother appeals from an order that, inter alia, granted custody of the subject child to petitioners, the child's maternal grandparents, with visitation to the mother. "It is well established 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 Gary G. v. Roslyn P., 248 A.D.2d 980, 981, 670 N.Y.S.2d 270 [4th Dept. 1998], quoting Matter of Bennett v. Jeffreys, 40 N.Y.2d 543, 544, 387 N.Y.S.2d 821, 356 N.E.2d 277 [1976] ). Here, contrary to the mother's sole contention on appeal, we conclude that Family Court properly determined that petitioners met their burden of proving the existence of extraordinary circumstances and, thus, that they had standing to seek custody of the child (see Matter of Thomas v. Armstrong, 144 A.D.3d 1567, 1568, 40 N.Y.S.3d 833 [4th Dept. 2016], lv denied 28 N.Y.3d 916, 2017 WL 628998 [2017] ; Matter of Thomas v. Small, 142 A.D.3d 1345, 1345, 38 N.Y.S.3d 461 [4th Dept. 2016] ; Matter of Van Dyke v. Cole, 121 A.D.3d 1584, 1585–1586, 994 N.Y.S.2d 219 [4th Dept. 2014] ; Matter of Braun v. Decicco, 117 A.D.3d 1453, 1454, 984 N.Y.S.2d 771 [4th Dept. 2014], lv. denied in part and dismissed in part 24 N.Y.3d 927, 993 N.Y.S.2d 539, 17 N.E.3d 1135 [2014] ).