Lewis v. Speaker

143 A.D.3d 822

39 N.Y.S.3d 200

2016 N.Y. Slip Op. 06710

In the Matter of Laurie LEWIS, respondent,

v.Jennifer SPEAKER, appellant.

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

Oct. 12, 2016.

Kelli M. O'Brien, Goshen, NY, for appellant.

Randy I. Siper, Montgomery, NY, for respondent.

Andrew W. Szczesniak, White Plains, NY, attorney for the child.

REINALDO E. RIVERA, J.P., JOHN M. LEVENTHAL, JOSEPH J. MALTESE, and FRANCESCA E. CONNOLLY, JJ.

Appeals by the mother from (1) an order of the Family Court, Orange County (Christine P. Krahulik, J.), entered April 15, 2015, and (2) an order of that court entered April 23, 2015. The order entered April 15, 2015, denied the mother's motion to dismiss the maternal grandmother's petition to modify a prior order of custody of that court (Andrew P. Bivona, J.) dated March 27, 2014, so as to award her sole custody of the subject child with supervised visitation to the mother. The order entered April 23, 2015, insofar as appealed from, after a hearing, granted the maternal grandmother's petition to the extent of modifying the prior order of custody so as to award her sole physical custody of the child and final decision-making authority, with supervised visitation to the mother.

ORDERED that on the Court's own motion, the notice of appeal from the order entered April 15, 2015, is deemed to be an application for leave to appeal from that order, and leave to appeal is granted (see Family Ct. Act § 1112[a] ); and it is further,

ORDERED that the order entered April 15, 2015, is affirmed, without costs or disbursements; and it is further,

ORDERED that the order entered April 23, 2015, is affirmed insofar as appealed from, without costs or disbursements.

In April 2013, approximately a month after the subject child was born, the mother was arrested. This arrest resulted in a misdemeanor conviction of possession of heroin and a sentence of probation. Six months later, the maternal grandmother (hereinafter the grandmother) filed a petition seeking custody of the child. In an order dated March 27, 2014, upon the mother's consent, the Family Court awarded the mother and the grandmother joint custody of the child.

Mere days later, on April 1, 2014, after receiving a phone call from Orange County Child Protective Services, the grandmother went to the mother's house to pick up the child, took the child to the doctor, and returned home with the child. The child has resided with the grandmother since that time. A week after the grandmother took the child into her physical custody, the mother was arrested and charged with violation of probation. The mother was eventually transferred from a jail in Orange County to Pike County Correctional Facility in Pennsylvania. The grandmother visited the mother while she was incarcerated, placed money in her commissary account, and took the child to visit the mother approximately once per month.

In September 2014, the grandmother filed the instant petition to modify the custody order so as to award her sole custody of the child with supervised visitation to the mother. In support of her petition, the grandmother alleged that, upon a request of the Department of Social Services, she began caring for the child a week before the mother's incarceration, and that the mother needed to stop using drugs before regaining custody of the child. After counsel was assigned for all parties, the mother moved to dismiss the petition for failure to state a cause of action. In an order entered April 15, 2015, the Family Court denied the motion.

Thereafter, the Family Court held a hearing on the petition, at which the grandmother, the mother, and the maternal grandfather testified. After the hearing, in an order entered April 23, 2015, the court granted the grandmother's petition to the extent of modifying the custody order so as to award her sole physical custody of the child and final decision-making authority, but not sole legal custody. The order further directed, inter alia, that the mother have “daily access to the child,” to be supervised by the grandmother or a third party approved by the grandmother. The mother appeals.

In a custody proceeding 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 by surrender, abandonment, persistent neglect, unfitness, or other extraordinary circumstances (see 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 543, 544, 387 N.Y.S.2d 821, 356 N.E.2d 277 ; Matter of Geter v. Gray, 141 A.D.3d 586, 34 N.Y.S.3d 588 ; Matter of Santiago v. Henderson, 122 A.D.3d 866, 866, 996 N.Y.S.2d 686 ; see also Domestic Relations Law § 72[2] ). “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 ; see Matter of Geter v. Gray, 141 A.D.3d 586, 34 N.Y.S.3d 588 ). The nonparent has the burden of establishing extraordinary circumstances even where, as here, there is a prior order awarding custody of the child to the nonparent that has been issued on consent of the parties (see Matter of Lallas v. Bolin, 134 A.D.3d 1038, 1039, 21 N.Y.S.3d 699 ; Matter of Weinberger v. Monroe, 120 A.D.3d 583, 583, 990 N.Y.S.2d 819 ; Howard v. McLoughlin, 64 A.D.3d 1147, 881 N.Y.S.2d 766 ).

Here, the Family Court erred in failing to make the threshold determination of extraordinary circumstances in determining the grandmother's custody petition (see Matter of Wright v. Wright, 81 A.D.3d 740, 740, 916 N.Y.S.2d 203 ; Matter of Robert G. v. Peter I., 43 A.D.3d 1162, 1163, 843 N.Y.S.2d 139 ). Nevertheless, we need not remit the matter to the Family Court for a new hearing since the record is adequate to enable this Court to determine that such extraordinary circumstances did, in fact, exist (se...