Opinion
03-08-2017
In the Matter of Aisha Jamila WILLIAMS, appellant, v. Pearl FRANK, et al., respondents.
Mark Brandys, New York, NY, for appellant. Karen P. Simmons, Brooklyn, NY (Susan M. Cordaro and Janet Neustaetter of counsel), attorney for the child.
Mark Brandys, New York, NY, for appellant.
Karen P. Simmons, Brooklyn, NY (Susan M. Cordaro and Janet Neustaetter of counsel), attorney for the child.
MARK C. DILLON, J.P., SHERI S. ROMAN, SYLVIA O. HINDS–RADIX, and COLLEEN D. DUFFY, JJ.
Appeal by the mother from an order of the Family Court, Kings County (William Franc Perry, J.), dated December 16, 2015. The order, insofar as appealed from, after a hearing, granted the mother's petition to modify a prior order of that court dated December 9, 2004, so as to her award her sole custody of the subject child only to the extent of awarding her visitation with the subject child, and awarded sole legal and residential custody to the maternal grandmother.
ORDERED that the order is affirmed insofar as appealed from, without costs or disbursements.The subject child, who was born in 2003, has been in the exclusive care of the maternal grandmother since he was approximately 10 months old. In March 2004, the maternal grandmother filed a petition for custody of the child, which was granted in an order dated December 9, 2004, upon the default of the mother and the father. The mother had been arrested for shoplifting in 2004, and was deported in 2005 based on her illegal status. The mother returned to the United States legally in March 2011, and filed a petition to modify the order dated December 9, 2004, so as to her award her sole custody of the child. In an order dated December 16, 2015, after a hearing, the Family Court granted the petition only to the extent of awarding the mother visitation with the child, and awarded sole legal and residential custody to the maternal grandmother.
In a custody proceeding between a parent and a nonparent, the parent has a superior right to custody that cannot be denied unless the nonparent demonstrates 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 Lewis v. Speaker, 143 A.D.3d 822, 823, 39 N.Y.S.3d 200 ; Matter of Culberson v. Fisher, 130 A.D.3d 827, 828, 12 N.Y.S.3d 544 ). "Only if the nonparent meets this burden does the court determine whether the best interests of the child warrant awarding custody to the nonparent" (Matter of Herrera v. Vallejo, 107 A.D.3d 714, 715, 966 N.Y.S.2d 206 ; 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 Lewis v. Speaker, 143 A.D.3d at 823, 39 N.Y.S.3d 200).
Here, the Family Court properly determined that the maternal grandmother sustained her burden of demonstrating extraordinary circumstances based upon the mother's prolonged separation from the subject child, and the maternal grandmother having provided for the child's financial, educational, emotional, and medical needs, with no contribution from the mother (see Matter of Culberson v. Fisher, 130 A.D.3d at 828, 12 N.Y.S.3d 544 ; Matter of Jerrina P. [June H.–Shondell N.P.], 126 A.D.3d 980, 981, 6 N.Y.S.3d 124 ; Matter of Colon v. Delgado, 106 A.D.3d 414, 415, 963 N.Y.S.2d 663 ; Matter of Jumper v. Hemphill, 75 A.D.3d 507, 508, 904 N.Y.S.2d 501 ). Moreover, the court's determination that an award of custody to the maternal grandmother would be in the best interests of the child is supported by a sound and substantial basis in the record (see Matter of Culberson v. Fisher, 130 A.D.3d at 828–829, 12 N.Y.S.3d 544 ; Matter of Flores v. Flores, 91 A.D.3d 869, 870, 936 N.Y.S.2d 676 ).
The mother's remaining contention is without merit.