Michael P. v. Joyce Q.

191 A.D.3d 1199

141 N.Y.S.3d 787

In the Matter of MICHAEL P., Appellant,

v.JOYCE Q., Respondent, et al., Respondents.

(Proceeding No. 1.)

In the Matter of Joyce Q., Respondent,

v.Michael P., Appellant, et al., Respondents.

(Proceeding No. 2.)

529081

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

Calendar Date: January 5, 2021

Decided and Entered: February 25, 2021

Michelle I. Rosien, Philmont, for appellant.

Tully Rinckey PLLC, Vestal (Christian J. Root of counsel), for Joyce Q., respondent.

Mark A. Schaeber, Liverpool, attorney for the child.

Before: Garry, P.J., Clark, Aarons, Pritzker and Colangelo, JJ.

MEMORANDUM AND ORDER

Pritzker, J.

Appeals from a decision and an order of the Family Court of Cortland County (Campbell, J.), entered February 26, 2019 and May 8, 2019, which, among other things, granted petitioner's application, in proceeding No. 2 pursuant to Family Ct Act article 6, to modify a prior order of custody.

Michael P. (hereinafter the father) and respondent Mickayla K. (hereinafter the mother)¹ are the parents of a son (born in 2014). Joyce Q. (hereinafter the aunt) is the mother's aunt with whom the child has resided since birth. Pursuant to a May 2016 order entered upon the mother's default, the father and the aunt were awarded joint legal custody, with the aunt having physical placement of the child. The order further provided that the father was entitled to visitation as agreed upon by the parties, the father and the aunt were authorized to consent to appropriate medical care for the child and the father and the aunt were authorized to have equal access to all of the child's records. Approximately one year thereafter, the father commenced the first of these proceedings seeking to modify the May 2016 order by awarding him increased parenting time, including overnight weekend visits, alleging that he is now a stay at home father and that the aunt prevented substantial visitation between him and the child.

The aunt then commenced the second of these proceedings, seeking to modify the May 2016 order by awarding her sole legal and physical custody of the child due to, among other things, the father's inability to understand the child's autism diagnosis, the father's lack of interaction during visits with the child and the father's severe untreated mental health concerns. Following a fact-finding hearing,² Family Court issued a decision in February 2019 granting the aunt's petition and dismissing the father's petition. The court found, among other things, that extraordinary circumstances existed as there are concerns with the father's mental health, his failure to address the child's special needs and the duration of time the child has lived with the aunt. The court also found that it is in the child's best interests for the aunt to have sole legal and physical custody of the child, with a schedule of visitation to the father. An order was entered in May 2019 reflecting the court's decision. The father appeals from the February 2019 decision and the May 2019 order.³

Family Court's determination that extraordinary circumstances exist to support a custody award to the aunt is supported by a sound and substantial basis in the record. It is well settled that a parent's right to custody of his or her child is superior to that of all others absent a showing of "surrender, abandonment, persistent neglect, unfitness, an extended disruption of custody or ‘other like extraordinary circumstances’ " ( Matter of Donna SS. v. Amy TT., 149 A.D.3d 1211, 1212, 52 N.Y.S.3d 515 [2017], quoting Matter of Bennett v. Jeffreys, 40 N.Y.2d 543, 544, 387 N.Y.S.2d 821, 356 N.E.2d 277 [1976] ). " ‘The extraordinary circumstances analysis must consider the cumulative effect of all issues present in a given case, including, among others, the length of time the child has lived with the nonparent, the quality of that relationship and the length of time the parent allowed such custody to continue without trying to assume the primary parental role’ " ( Matter of Marcia ZZ. v. April A., 151 A.D.3d 1303, 1304, 56 N.Y.S.3d 645 [2017], quoting Matter of Peters v. Dugan, 141 A.D.3d 751, 753, 34 N.Y.S.3d 741 [2016] ). The nonparent bears the burden of proving extraordinary circumstances (see Matter of Marcia ZZ. v. April A., 151 A.D.3d at 1304, 56 N.Y.S.3d 645 ; Matter of Thompson v. Bray, 148 A.D.3d 1364, 1365, 51 N.Y.S.3d 635 [2017] ). "Once extraordinary circumstances have been established, Family Court may then proceed to the issue of whether an award of custody to the nonparent, rather than the parent, is in the child's best interests" ( Matter of Donna SS. v. Amy TT., 149 A.D.3d at 1212–1213, 52 N.Y.S.3d 515 ).

At the fact-finding hearing, Jaye Hale, a special education teacher and special instructor for early intervention services, testified that the child has been diagnosed with autism and that she provided special instruction to him from August 2016 to August 2017 at the aunt's home. When Hale was working with the child, he communicated very little and was not reaching typical milestones for a two or three year old. Hale testified that, among other things, the child has sensory disorders that make it difficult for him to touch objects and he is sensitive to loud noises. Hale also testified that the child regularly exhibits self-abusive behaviors when he becomes frustrated and, when the child is hurt or in danger, he is unable to communicate that to anyone. Hale's testimony also established that the child is very bonded to the aunt, who attended all of Hale's sessions with the child and that, from what Hale has observed, the aunt is very committed to the child, making special arrangements and taking precautions so that the child is able to go into the community. Hale also explained that the aunt's house is very "oriented" for the child and that, since the child gets frustrated and upset when outside of the aunt's house, the person responsible for the child would need to be very attentive and supervise him at all times. Hale also testified that the father attended her sessions on a few occasions, but he did not interact with the child. The child's occupational therapy services provider also testified and, overall, her testimony regarding the child's diagnosis and challenges corroborated Hale's testimony. The occupational therapist similarly described the bond between the aunt and the child as very loving and explained that the child needs constant "supervision and assistance for most self-care activities but definitely for the safety factor."

The father testified that, in the two years prior to the fact-finding hearing, he lived at approximately three different residences. The father's residence at the time of the hearing had two bedrooms, one of which is his and the other is shared by his three other children (not including the child). The father's testimony included some instances that reflected poor supervision of his other children, including an incident one week prior to the hearing when his three-year-old son (not the child) fell out of a go-cart that his older son was driving and his three-year-old son had to get stitches as a result. The father also testified that he has posttraumatic stress disorder and admitted to more than one incident of self-harm. Additionally, the father admitted to taking steroids in the recent past and that, approximately seven years prior, he was arrested for intentionally crashing his car into his ex-wife's car after finding her with another man.

As to the child, the father testified that, in...