Autumn B. v. Jasmine A.

220 A.D.3d 1073

198 N.Y.S.3d 252

In the Matter of AUTUMN B., Respondent,

v.JASMINE A., Respondent,andGlenn ZZ., Appellant.

(And Four Other Related Proceedings.)

535092

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: September 13, 2023

Decided and Entered: October 19, 2023

Lisa K. Miller, McGraw, for appellant.

Garufi Law PC, Binghamton (Carman M. Garufi of counsel), for Autumn B., respondent.

Pamela B. Bleiwas, Ithaca, for Jasmine A., respondent.

Larisa Obolensky, Delhi, attorney for the child.

Before: Garry, P.J., Egan Jr., Aarons, McShan and Mackey, JJ.

MEMORANDUM AND ORDER

Garry, P.J. Appeal from an order of the Family Court of Broome County (Daniel J. Fitzsimmons, Referee), entered February 17, 2022, which, among other things, granted petitioner's amended application, in a proceeding pursuant to Family Ct Act article 6, for custody of the subject child.

Respondents Jasmine A. (hereinafter the mother) and Glenn ZZ. (hereinafter the father) are the parents of the subject child (born in 2014); although the father's paternity has been questioned, it is undisputed that he executed a voluntary acknowledgment of paternity following the child's birth and that the acknowledgement remains in force. The child, like his older half sister, was raised by his maternal grandparents, whom the child understood to be his mother and father.¹ Following the grandmother's death in March 2020, petitioner (hereinafter the aunt), the child's maternal aunt, commenced the first of the instant proceedings, seeking sole custody of the subject child and his half sister. Family Court (Young, J.) granted the aunt temporary custody of both children, and the children moved to Maryland to live with the aunt and her two daughters.² Beginning in June 2020, the father filed several petitions seeking visitation with the subject child, and, in October 2020, he petitioned for some form of custody. Following a fact-finding hearing and Lincoln hearing, Family Court (Fitzsimmons, Referee) awarded the aunt sole custody of the child and granted the father 30 minutes of supervised video visitation every two weeks and at least two hours of supervised, in-person visitation per year, over either one or two days at the aunt's discretion. The father appeals.

As a preliminary matter, although there may have initially been an unwarranted amount of attention paid to the father's alleged lack of biological relationship to the subject child, it was ultimately accepted that the father's unchallenged acknowledgment of paternity affords him the legal status of a parent (see generally Family Ct Act § 516–a ; Public Health Law § 4135–b ). We therefore reject the father's argument that Family Court's award was affected by a fundamental misunderstanding of law.

"[A] parent has a claim of custody of his or her child that is superior to that of all others, absent surrender, abandonment, persistent neglect, unfitness, disruption of custody over a prolonged period of time or the existence of other extraordinary circumstances" ( Matter of Nicole L. v. David M., 195 A.D.3d 1058, 1059–1060, 149 N.Y.S.3d 676 [3d Dept. 2021] [internal quotation marks and citations omitted]; see Matter of Bennett v. Jeffreys, 40 N.Y.2d 543, 546, 387 N.Y.S.2d 821, 356 N.E.2d 277 [1976] ). "Where, as here, there has been no prior finding of extraordinary circumstances, it remains the nonparent's burden to demonstrate the existence thereof and, thus, that he or she has standing to seek custody of another person's child" ( Matter of Jared MM. v. Mark KK., 205 A.D.3d 1084, 1087, 168 N.Y.S.3d 555 [3d Dept. 2022] [citations omitted]; see Matter of Sonya M. v. Tabu N., 198 A.D.3d 1206, 1208, 157 N.Y.S.3d 138 [3d Dept. 2021], lvs denied 38 N.Y.3d 901, 164 N.Y.S.3d 545, 185 N.E.3d 24 [2022], 38 N.Y.3d 902, 2022 WL 806624 [2022] ). "Such inquiry necessitates consideration of the cumulative effect of all issues present in a given case, including the quality of the child's relationship with the parents and the nonparent, whether the child has lived with the nonparent for any length of time and any neglect by the parents" ( Matter of Lisa F. v. Thomas E., 211 A.D.3d 1367, 1368–1369, 180 N.Y.S.3d 398 [3d Dept. 2022] [internal quotation marks, brackets and citations omitted]; Matter of Tiffany W. v. James X., 196 A.D.3d 787, 789, 151 N.Y.S.3d 225 [3d Dept. 2021] ).

There is no dispute, as the aunt demonstrated, that the child's grandparents raised him since birth and that he believed them to be his parents and the father to be "a family friend."³ The father voluntarily relinquished all parental responsibilities and control of the child to the grandparents, and, until this litigation, he did not hold himself out as the child's father. He was aware of the grandmother's death, but he only asserted his first request for any form of physical custody of the child seven months later. The grandmother had historically facilitated the child spending some time with both the mother and the father, but it bears noting that the father has never spent any time alone with the child; their interactions were brief, in a public place, supervised and largely ancillary to the father's relationship with the mother. The father had no contact with the child whatsoever in the several months prior to the grandmother's death. The record is also devoid of any evidence of a bond between the father and the child – parental or otherwise. We therefore reject the father's assertion that the aunt failed to establish extraordinary circumstances (see Matter of Jared MM. v. Mark KK., 205 A.D.3d at 1089, 168 N.Y.S.3d 555 ; Matter of Nicole L. v. David M., 195 A.D.3d at 1061, 149 N.Y.S.3d 676 ; Matter of Michael P. v. Joyce Q., 191 A.D.3d 1199, 1202, 141 N.Y.S.3d 787 [3d Dept. 2021], lvs denied 37 N.Y.3d 901, 146 N.Y.S.3d 593, 169 N.E.3d 1228 [2021], 37 N.Y.3d 902, 146 N.Y.S.3d 590, 169 N.E.3d 960 [2021] ; Matter of Isaiah O. v. Andrea P., 287 A.D.2d 816, 817, 731 N.Y.S.2d 273 [3d Dept. 2001] ).

Extraordinary circumstances having thus been established, the inquiry turns to "what custodial arrangement will further the child's best interests, and relevant factors in that analysis include maintaining stability in the child's life, the quality of the respective home environments, the length of time the present custody arrangement has been in place and each party's past performance, relative fitness and ability to provide for and guide the child's intellectual and emotional development" ( Matter of Jared MM. v. Mark KK., 205 A.D.3d at 1087, 168 N.Y.S.3d 555 [internal quotation marks and citations omitted]; see Matter of Tiffany W. v. James X., 196 A.D.3d at 791, 151 N.Y.S.3d 225 ).

As previously noted, the father has not cared for the child for any period of time, and there is no indication of any meaningful relationship between them. While the child was in the grandmother's custody, the father provided some financial support to the child by way of his Social Security Disability benefits. No efforts were made following the grandmother's death to secure those ongoing benefits for the child. The father historically had only seasonal employment, for two or three months out of the year, and does not drive or own a vehicle due to a mobility impairment. At the time of the hearing, he lived in a two-bedroom apartment that he shared with a roommate; there was no evidence offered regarding the roommate. The father's plan related to his request for physical custody of the child was to sleep in the apartment's living room so as to provide the child with private space. He offered no evidence to show that he had considered, and could meet, any of the child's basic needs. Notably, the father also advocated for separating the child from his half sister, with whom the child has lived his entire life. As evidenced in the aunt's proof and throughout the court proceedings, the father had consistent difficultly controlling his behavior, despite his voluntary completion of an anger management program. The father also has a history of illegal drug use, including during the course of these proceedings when he found himself unable to cope with the child's move to Maryland. His medical condition(s) also require him to take at least one prescribed medication that could impair his ability to safely supervise a child.

In contrast, the aunt has stable income and employment as a medical professional and a home that affords all four children living in it comfort, privacy and safety. She has demonstrated her ability to care for the child's needs and provide him with enriching opportunities over an extended period of time. The child's placement with the aunt also permits him to remain with his half sister. Although we acknowledge the aunt's stated intention to limit the relationship between the child and the father – a position partly inspired by the father's hostility toward her and the child's confusion by the father's involvement in his life – there is no indication that she disparages the father or that she will not meaningfully implement an order of visitation. Deferring to Family Court's credibility determinations and factual findings, we find a sound and substantial basis in the record for awarding the aunt sole custody of the child (see Matter of Lisa F. v. Thomas E., 211 A.D.3d at 1370, 180 N.Y.S.3d 398 ; Matter of Tiffany W. v. James X., 196 A.D.3d at 791–792, 151 N.Y.S.3d 225 ; Matter of Tasha AA. v. Tammy DD., 178 A.D.3d 1306, 1309, 116 N.Y.S.3d 729 [3d Dept. 2019] ; Matter of DellaPiana v. DellaPiana, 161 A.D.3d 1228, 1231, 75 N.Y.S.3d 381 [3d Dept. 2018] ; Matter of Kowalsky v. Converse, 79 A.D.3d 1310, 1312, 912 N.Y.S.2d 760 [3d Dept. 2010] ).

The father alternatively requests increased visitation – specifically, four in-person visits per year, the same quarterly arrangement that it appears the mother was to enjoy with the children. It is well established that "[v]isitation with a noncustodial parent is presumed to be in the best interests of...