Hawkins v. O'Dell

166 A.D.3d 1438

89 N.Y.S.3d 374

In the Matter of Cynthia HAWKINS, Appellant,

v.Seth O'DELL, Respondent.

(And Another Related Proceeding.)

525765

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

Calendar Date: October 15, 2018

Decided and Entered: November 29, 2018

Cowen Law Firm, LLP, Sidney (Sarah Cowen of counsel), for appellant.

Natoli & Natoli, LLP, Norwich (Lisa A. Natoli of counsel), for respondent.

Before: McCarthy, J.P., Egan Jr., Devine, Clark and Aarons, JJ.

MEMORANDUM AND ORDER

Devine, J.

Petitioner (hereinafter the grandmother) is the maternal grandmother and respondent (hereinafter the father) is the father of the subject child (born in 2004). The parents shared legal custody of the child pursuant to a 2012 consent order, with primary physical placement to the mother and visitation to the father. The mother, the child and other family members moved into an apartment at the grandmother's residence in 2014. The child's bedroom was in the grandmother's living space, and the grandmother was responsible in large part for his care.

The mother died in January 2016 and, within a week, the child was living with the father. By the end of the month, the father petitioned for modification of the 2012 order to grant him sole custody of the child. In March 2016, the grandmother petitioned for custody and/or visitation. Following a hearing that included a Lincoln hearing on the petitions, Family Court found that the grandmother had not demonstrated extraordinary circumstances warranting an award of custody to her (see Domestic Relations Law § 72[2][a] ). Family Court further found that the death of the mother afforded the grandmother standing to seek visitation (see Domestic Relations Law § 72[1] ) and, upon a consideration of the child's best interests, awarded sole custody to the father and specified visitation to the grandmother. The grandmother now appeals and argues, with the support of the attorney for the child, that she established the existence of extraordinary circumstances and that the best interests of the child lie with an award of custody to her.

"Under settled law, a parent has a claim of custody of his or her child, superior to that of all others, in the absence of surrender, abandonment, persistent neglect, unfitness, disruption of custody over an extended period of time or other extraordinary circumstances, and the nonparent bears the heavy burden of establishing extraordinary circumstances to overcome the [parent's] superior right to custody" ( Matter of Liz WW. v. Shakeria XX., 128 A.D.3d 1118, 1120, 8 N.Y.S.3d 713 [2015] [internal quotation marks and citations omitted], lv dismissed 25 N.Y.3d 1195, 16 N.Y.S.3d 53, 37 N.E.3d 112 [2015] ; see Matter of Suarez v. Williams, 26 N.Y.3d 440, 446, 23 N.Y.S.3d 617, 44 N.E.3d 915 [2015] ; Matter of Cramer v. Cramer, 163 A.D.3d 1077, 1078, 81 N.Y.S.3d 302 [2018] ; Matter of Loretta RR. v. Maryann SS., 160 A.D.3d 1065, 1066, 73 N.Y.S.3d 683 [2018] ). The quality of the child's relationship with the parent and the nonparent, whether the child had lived with the nonparent for any length of time and any delay by the parent in seeking primary physical placement are all relevant factors in discerning the existence of extraordinary circumstances (see Matter of Suarez v. Williams, 26 N.Y.3d at 449–450, 23 N.Y.S.3d 617, 44 N.E.3d 915 ; Matter of Chasity CC. v. Frederick DD., 165 A.D.3d 1412, ––––, 87 N.Y.S.3d 350, 2018 N.Y. Slip Op. 07012, *2 [2018 ]; Matter of Perry v. Perry, 160 A.D.3d 1144, 1145, 73 N.Y.S.3d 801 [2018] ; Matter of Battisti v. Battisti, 121 A.D.3d 1196, 1197, 993 N.Y.S.2d 804 [2014] ). If, and only if, the nonparent establishes extraordinary circumstances may a court "then consider what custodial arrangement serves the best interests of the child[ ]" ( Matter of Chasity CC. v. Frederick DD., 165 A.D.3d at ––––, 87 N.Y.S.3d 350, 2018 N.Y. Slip Op. 07012 at *1 ; see Matter of Loretta RR. v. Maryann SS., 160 A.D.3d at 1068, 73 N.Y.S.3d 683 ). Loretta RR. v. Maryann SS., 160 A.D.3d at 1068, 73 N.Y.S.3d 683 ).

There is no question that the grandmother has always been close to the child and that, while the child was physically placed with the mother, the grandmother played a major role in his care from 2014 until the mother's death in January 2016. It cannot be said that the father voluntarily acceded to this, however, as the grandmother did not tell him of either her role or that it was due to what she described as the mother's inadequate parenting. The record also suggests that the father would not have tolerated the situation had he known of it, as he promptly took charge of the child following the mother's death and had previously sought to modify the established custodial arrangement upon learning that the mother was absent from the family residence (see Matter of Sellers v....