Brittany N. v. Anthony D.

2022 NY Slip Op 01162

In the Matter of Brittany N., petitioner-appellant, v. Anthony D., et al., respondents-respondents. (Proceeding No. 1)

In the Matter of Michael D., petitioner, v. Anthony D., et al., respondents. (Proceeding No. 2)

In the Matter of Anthony D., et al., petitioners, v. Brittany N., et al., respondents. (Proceeding No. 3)

Docket Nos. V-01692-19/19A/20B, V-11208-16/19C/19D, V-11209-16/19B/19D/19E/19F/20C

Supreme Court of New York, Second Department

February 23, 2022

Law Offices of Michael J. Alber, P.C., Huntington Station, NY (Michael Alber and Christina J. Nankervis of counsel), for petitioner-appellant.

Long Tuminello, LLP, Bay Shore, NY (Kevin J. Werner and Patricia A. Deegan of counsel), for respondents-respondents.

Laurette D. Mulry, Central Islip, NY (John B. Belmonte of counsel), attorney for the child.

MARK C. DILLON, J.P., COLLEEN D. DUFFY, VALERIE BRATHWAITE NELSON SHERI S. ROMAN, JJ.

DECISION & ORDER

In related proceedings pursuant to Family Court Act article 6 the mother appeals from an order of the Family Court, Suffolk County (Caren Loguercio, J.), dated December 4, 2020. The order, insofar as appealed from, after a hearing, denied that branch of the mother's petition which was to modify a prior order of the same court dated August 9, 2016, so as to award her sole legal and physical custody of the subject child.

ORDERED that the order dated December 4, 2020, is affirmed insofar as appealed from, without costs or disbursements.

The mother and the father are the parents of a child born in 2015. As a result of their substance abuse, a neglect proceeding was commenced against the parents, and the child was placed with the paternal grandparents approximately two weeks after his birth. In an order dated August 9, 2016, the Family Court, on consent of the parents, awarded sole legal and physical custody of the child to the paternal grandparents, with supervised parental access to the parents as agreed by the parties (hereinafter the custody order).

During the first year of the child's life, the mother lived with the father across the street from the grandparents and the child. After the relationship between the father and the mother ended in June 2016, the mother saw the child infrequently. In July 2017, the mother moved to California. After returning to New York in May 2018, she received substance abuse treatment, and has remained sober ever since. The mother resumed supervised parental access with the child in the summer of 2018. In September 2018, she filed a petition to modify the custody order so as to award her sole legal and physical custody of the child, or in the alternative, for increased parental access. By order dated December 4, 2020, the Family Court, after a hearing, inter alia, denied that branch of the mother's petition which was to modify the custody order so as to award her sole legal and physical custody of the child. The mother appeals.

"In a child custody dispute 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 due to surrender, abandonment persistent neglect, unfitness or other extraordinary circumstances" (Matter of Bailey v Carr, 125 A.D.3d 853, 853; see Matter of Bennett v Jeffreys, 40 N.Y.2d 543, 548; Matter of Maiyasha J.M. [Sherryann Z.-Asheena P.], 183 A.D.3d 742, 743). This rule applies even when, as here, a prior order awarding custody to the nonparent has been issued upon consent (see Matter of Gunther v Brown, 148 A.D.3d 889, 889; Matter of Lallas v Bolin, 134 A.D.3d 1038, 1039; Matter of Mercado v Smith, 133 A.D.3d 762, 762). However, a nonparent may obtain custody of a child as against a parent where the nonparent establishes the existence of extraordinary circumstances (see Matter of Suarez v Williams, 26 N.Y.3d 440, 446; Matter of Bennett v Jeffreys, 40 N.Y.2d at 546; Matter of Mooney v Mooney, 198 A.D.3d 784, 785).

"Pursuant to Domestic Relations Law § 72, governing a grandparent's request for custody of a minor child, an 'extended disruption of custody' between the child and the parent 'shall constitute an extraordinary circumstance'" (Matter of Mooney v Mooney 198 A.D.3d at 785, quoting Domestic Relations Law § 72[2][a]). "An extended disruption of custody includes a prolonged separation between a parent and a child for at least 24 continuous months during which the parent voluntarily relinquished care and...