Opinion
7530
11-01-2018
In re ILIANA S., Petitioner–Appellant, v. RICHARD P., Respondent–Respondent, Maria S. (Deceased), Respondent. In re Iliana S., Petitioner–Appellant, v. Richard P., Respondent–Respondent.
Leslie S. Lowenstein, Woodmere, for appellant. Kenneth M. Tuccillo, Hastings on Hudson, for respondent.
Leslie S. Lowenstein, Woodmere, for appellant.
Kenneth M. Tuccillo, Hastings on Hudson, for respondent.
Renwick, J.P., Richter, Manzanet–Daniels, Gische, Tom, JJ.
Order, Family Court, New York County (Monica D. Shulman, Referee), entered on or about October 19, 2017, which, to the extent appealed from as limited by the briefs, dismissed appellant's petition for custody of her nephew, unanimously affirmed, without costs.
Family Court properly found that petitioner, the subject child's maternal aunt, failed to establish the requisite extraordinary circumstances to seek custody of the child (see Matter of Bennett v. Jeffreys, 40 N.Y.2d 543, 544, 387 N.Y.S.2d 821, 356 N.E.2d 277 [1976] ; Domestic Relations Law § 72[2][a] ).
While the child and his mother resided with petitioner and the maternal family for approximately one year prior to the mother's death, there was no prolonged separation of the father and child, during which he voluntarily relinquished care and control of the child, sufficient to disrupt his assertion of custody (compare Roberta P. v. Vanessa J.P., 140 A.D.3d 457, 31 N.Y.S.3d 507 [1st Dept. 2016], lv denied 28 N.Y.3d 904, 2016 WL 6113618 [2016] ). Respondent father took the child into his custody shortly after the mother's death, and both the father and his wife testified that they have provided for the child's financial and emotional needs since that time.
Nor are there allegations of serious misconduct on the part of the father to constitute the requisite extraordinary circumstances necessary to allow for a further best interest custodial determination (compare Matter of Veras v. Padilla, 161 A.D.3d 989, 77 N.Y.S.3d 111 [2d Dept. 2018] ).
We have considered petitioner's remaining arguments and find them unavailing.