Conroy v. Conroy

160 A.D.3d 727

73 N.Y.S.3d 611

In the Matter of Esther M. CONROY, petitioner-respondent,

v.Annemarie D. CONROY, appellant, et al., respondent.

2017–02663

Docket Nos. V–4683–15, V–4684–15

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

Submitted—March 6, 2018

April 11, 2018

Philip H. Schnabel, Chester, N.Y., for appellant.

Legal Services of the Hudson Valley, Poughkeepsie, N.Y. (Meghan A. Kling of counsel), for petitioner-respondent.

Ronna L. DeLoe, New Rochelle, N.Y., attorney for the children.

RUTH C. BALKIN, J.P., SHERI S. ROMAN, ROBERT J. MILLER, VALERIE BRATHWAITE NELSON, JJ.

DECISION & ORDER

In a proceeding pursuant to Family Court Act article 6, the mother appeals from an order of the Family Court, Orange County (Lori Currier Woods, J.), entered January 11, 2017.

The order, after a hearing, granted the paternal grandmother's petition for custody of the subject children.

ORDERED that the order is affirmed, without costs or disbursements.

In October 2015, the paternal grandmother filed a petition for custody of the two subject children, who were nine and almost six years old at the time. The mother opposed the petition and sought dismissal on the ground that the paternal grandmother had not alleged the existence of extraordinary circumstances so as to give her standing to seek custody. The father did not oppose the petition. The Family Court denied the mother's application to dismiss the petition and held a hearing to determine whether extraordinary circumstances existed. At the close of the hearing as to extraordinary circumstances, the mother again asked the court to dismiss the petition on the ground that the paternal grandmother had not demonstrated the existence of extraordinary circumstances. The court denied the mother's application, holding that the evidence demonstrated persisting neglect by both parents and abandonment by the father.

Subsequently, the Family Court conducted a hearing to determine what custodial arrangement would be in the children's best interests. After the hearing, the court determined that the best interests of the children would be served by giving the paternal grandmother primary physical custody, with legal custody shared by the paternal grandmother, the mother, and the father. In an order entered January 11, 2017, the court granted the paternal grandmother's custody petition. The court also provided for frequent parenting time for the mother and the father, and it directed that the parents enroll in, and successfully complete, a parenting program, as well as undergo therapy. The mother appeals.

"Absent extraordinary circumstances, narrowly categorized, it is not within the power of a court, or, by delegation of the Legislature or court, a social agency, to make significant decisions concerning the custody of children, merely because it could make a better decision or disposition" ( Matter of Bennett v. Jeffreys, 40 N.Y.2d 543, 545, 387 N.Y.S.2d 821, 356 N.E.2d 277 ; see Matter of Corey L v. Martin L, 45 N.Y.2d 383, 391, 408 N.Y.S.2d 439, 380 N.E.2d 266 ; Matter of Bailey v. Carr, 125 A.D.3d 853, 854, 4 N.Y.S.3d 121 ). Nevertheless, upon a showing of extraordinary circumstances, a grandparent of a minor child has standing to apply for custody of the child as against a parent (see Domestic Relations Law § 72[2][a] ; Family Ct Act § 651[b] ; Matter of Suarez v. Williams, 26 N.Y.3d 440, 446, 23 N.Y.S.3d 617, 44 N.E.3d 915 ; Matter of Bennett v. Jeffreys, 40 N.Y.2d at 546–548, 387 N.Y.S.2d 821, 356 N.E.2d 277 ; Matter of Schmitt v. Troche, 155 A.D.3d 739, 740, 64 N.Y.S.3d 91 ). Extraordinary circumstances include, among other things, surrender, abandonment, persisting neglect, and unfitness (see Matter of Suarez v. Williams, 26 N.Y.3d at 446, 23 N.Y.S.3d 617, 44 N.E.3d 915 ; Matter of Bennett v. Jeffreys, 40 N.Y.2d at 544, 546, 387 N.Y.S.2d 821, 356 N.E.2d 277 ; Matter of Schmitt v. Troche, 155 A.D.3d at 740, 64 N.Y.S.3d 91). If the grandparent establishes standing by demonstrating the existence of extraordinary circumstances, the court shall then make an award of custody based on the best interests of the child (see Matter of Suarez v. Williams, 26 N.Y.3d at 446, 23 N.Y.S.3d 617, 44 N.E.3d 915 ; Matter of Bennett v. Jeffreys, 40 N.Y.2d at 548, 387 N.Y.S.2d 821, 356 N.E.2d 277 ; Matter of Schmitt v. Troche, 155 A.D.3d at 740, 64 N.Y.S.3d 91 ).

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