Geter v. Gray

141 A.D.3d 586

34 N.Y.S.3d 588

2016 N.Y. Slip Op. 05497

In the Matter of Juanita GETER, respondent,

v.Sha–Renya GRAY, appellant.

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

July 13, 2016.

James M. Hendry, Port Jervis, N.Y., for appellant.

McCabe & Mack, LLP, Poughkeepsie, N.Y. (Matthew V. Mirabile and Andrea Gellen of counsel), for respondent.

Farber, Pappalardo & Carbonari, White Plains, N.Y. (John A. Pappalardo and Olivia T. Marotta of counsel), attorney for the child.

CHERYL E. CHAMBERS, J.P., LEONARD B. AUSTIN, JOSEPH J. MALTESE, and COLLEEN D. DUFFY, JJ.

Appeal from an order of the Family Court, Orange County (Debra J. Kiedaisch, J.), entered May 17, 2015. The order, insofar as appealed from, after a hearing, granted the petition of the paternal grandmother for sole custody of the subject child.

ORDERED that the order is affirmed insofar as appealed from, 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, persisting neglect, unfitness, or other like extraordinary circumstances' ” (Matter of Lallas v. Bolin, 134 A.D.3d 1038, 1039, 21 N.Y.S.3d 699, quoting Matter of Weinberger v. Monroe, 120 A.D.3d 583, 583, 990 N.Y.S.2d 819 ; see Matter of Male Infant L., 61 N.Y.2d 420, 427, 474 N.Y.S.2d 447, 462 N.E.2d 1165 ; Matter of Bennett v. Jeffreys, 40 N.Y.2d 543, 544, 387 N.Y.S.2d 821, 356 N.E.2d 277 ). “The burden is on the nonparent to prove the existence of extraordinary circumstances” (Matter of Jerrina P. [June H.-Shondell N.P.], 126 A.D.3d 980, 981, 6 N.Y.S.3d 124 ; see Matter of Darlene T., 28 N.Y.2d 391, 394, 322 N.Y.S.2d 231, 271 N.E.2d 215 ; Matter of Brown v. Zuzierla, 73 A.D.3d 765, 766, 900 N.Y.S.2d 414 ). “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 ).

Here, the Family Court properly determined that the petitioner, the child's paternal grandmother, sustained her burden of proving extraordinary circumstances by presenting evidence of the mother's persisting neglect and unfitness. The evidence adduced at the hearing showed that the mother, who lives in Ohio, failed to play a significant role in the child's life since bringing him to live with his late father in 2008. Since that time, the mother missed most of her regularly scheduled visits with the child, attended only one of the child's school conferences, and did not provide financial support for the child. The evidence further demonstrated that, during the child's most recent visit to Ohio in 2013, the mother failed to ensure that the child took his prescription medication, locked the child out of her house with his 9– and 12–year–old cousins, left the child and his cousins alone at a Wendy's restaurant while she went to work, threatened one of the child's cousins with a gun, and returned the child to New York in dirty clothes and women's...