Opinion
2015-03-25
In the Matter of JERRINA P. (Anonymous). June H. (Anonymous), et al., petitioners-respondents; Shondell N.P. (Anonymous), appellant, et al., respondent. (Proceeding No. 1) In the Matter of Shondell N.P. (Anonymous), appellant, v. Jerry G.P. (Anonymous), respondent. (Proceeding No. 2).
Lewis S. Calderon, Jamaica, N.Y., for appellant. Koehler & Isaacs, New York, N.Y. (Gabriel Greenberg of counsel), for respondents.
Lewis S. Calderon, Jamaica, N.Y., for appellant. Koehler & Isaacs, New York, N.Y. (Gabriel Greenberg of counsel), for respondents.
Karen P. Simmons, Brooklyn, N.Y. (Anna Kou and Janet Neustaetter of counsel), attorney for the children.
REINALDO E. RIVERA, J.P., THOMAS A. DICKERSON, CHERYL E. CHAMBERS, and BETSY BARROS, JJ.
Appeal from an order of the Family Court, Kings County (Leticia M. Ramirez, J.), dated November 25, 2013. The order, after a hearing, in effect, granted the petition of June H. and Litchfield H. for sole custody of the subject child, and denied the mother's petition for sole custody of the subject child.
ORDERED that the order is affirmed, without costs or disbursements.
In a custody proceeding between a parent and a nonparent, the parent has the 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 like extraordinary circumstances ( see Matter of Bennett v. Jeffreys, 40 N.Y.2d 543, 548, 387 N.Y.S.2d 821, 356 N.E.2d 277; Matter of Herrera v. Vallejo, 107 A.D.3d 714, 714, 966 N.Y.S.2d 206; Matter of Flores v. Flores, 91 A.D.3d 869, 869–870, 936 N.Y.S.2d 676; Matter of Robinson v. McNair, 90 A.D.3d 759, 760, 934 N.Y.S.2d 232). The burden is on the nonparent to prove the existence of extraordinary circumstances ( see Matter of Darlene T., 28 N.Y.2d 391, 394, 322 N.Y.S.2d 231, 271 N.E.2d 215; Matter of Ruiz v. Travis, 84 A.D.3d 1242, 1242, 924 N.Y.S.2d 456). Where extraordinary circumstances are present, the court must then consider the best interests of the child in awarding custody ( see Matter of Bennett v. Jeffreys, 40 N.Y.2d at 548, 387 N.Y.S.2d 821, 356 N.E.2d 277; Matter of Flores v. Flores, 91 A.D.3d at 870, 936 N.Y.S.2d 676).
Here, the Family Court properly determined that the nonparent petitioners sustained their burden of demonstrating extraordinary circumstances based upon, inter alia, the mother's prolonged separation from the subject child and lack of involvement in the child's life, the mother's failure to contribute to the child's financial support, and the strong emotional bond the child had formed with the petitioners ( see Matter of Colon v. Delgado, 106 A.D.3d 414, 415, 963 N.Y.S.2d 663; Matter of Robinson v. McNair, 90 A.D.3d at 760, 934 N.Y.S.2d 232; Matter of Holmes v. Glover, 68 A.D.3d 868, 869, 890 N.Y.S.2d 629; Matter of Barcellos v. Warren–Kidd, 57 A.D.3d 984, 985, 870 N.Y.S.2d 443). Moreover, the Family Court's determination that an award of custody to the petitioners would be in the best interests of the child is supported by a sound and substantial basis in the record ( see Matter of Herrera v. Vallejo, 107 A.D.3d at 714, 966 N.Y.S.2d 206; Matter of Flores v. Flores, 91 A.D.3d at 870, 936 N.Y.S.2d 676; Matter of Robinson v. McNair, 90 A.D.3d at 761, 934 N.Y.S.2d 232; Matter of Jumper v. Hemphill, 75 A.D.3d 507, 508, 904 N.Y.S.2d 501; Matter of Barcellos v. Warren–Kidd, 57 A.D.3d at 985, 870 N.Y.S.2d 443).