Shanna O. v. James P.

176 A.D.3d 1334

112 N.Y.S.3d 792

In the Matter of SHANNA O., Appellant,

v.JAMES P., Respondent.

(Proceeding No. 1.)

In the Matter of Amanda P., Respondent,

v.James P., Respondent,andShanna O., Appellant.

(Proceeding No. 2.)

526672

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

Decided and Entered: October 17, 2019

Calendar Date: September 11, 2019

Pamela B. Bleiwas, Ithaca, for appellant.

Michelle I. Rosien, Philmont, for Amanda P., respondent.

Veronica M. Gorman, Binghamton, attorney for the child.

Before: Egan Jr., J.P., Lynch, Mulvey and Devine, JJ.

MEMORANDUM AND ORDER

Mulvey, J. Shanna O. (hereinafter the mother) and respondent James P. (hereinafter the father) are the parents of the subject child (born in July 2005). In the fall of 2007, the father moved to New York, leaving the child and the mother in the state where they had all been living together. In April 2008, the mother allowed the father to take the child for an extended visit. The father then obtained a Family Court order granting him sole custody, so the child remained living with the father and petitioner Amanda P. (hereinafter the stepmother), who later married the father. From 2008 until the mother moved back to this state in 2012, the mother visited the child approximately 16 times and admits that, at one point, she went three years without seeing the child. In 2012, the mother began daytime visits with the child and progressed into visits every other weekend, as embodied in a 2013 Family Court order.

In the fall of 2016, the father informed the mother that he had separated from the stepmother but left the child in the stepmother's care. The mother began communicating more regularly with the stepmother and, based on the father's approval, began visiting with the child every weekend. In early May 2017, the stepmother asked the father to completely leave the residence. At the end of July 2017, the mother filed a petition against the father seeking custody. The stepmother later filed a custody petition against both parents. After hearings on both petitions, Family Court awarded custody to the stepmother and visitation to each parent. The mother appeals.

Although Family Court has rendered a thorough and thoughtful decision, it erred in basing its custody determination on the premise that the stepmother was a de facto parent who had standing to seek custody under Domestic Relations

Law § 70(a) pursuant to the Court of Appeals decision in Matter of Brooke S.B. v. Elizabeth A.C.C., 28 N.Y.3d 1, 39 N.Y.S.3d 89, 61 N.E.3d 488 (2016) ). Domestic Relations Law § 70(a) provides that "either parent" may apply to a court for custody of a child residing in the state. In Matter of Brooke S.B. , the Court expanded the definition of the word parent – a term not defined in the statute – to include a partner to a biological or adoptive parent where the partner has demonstrated "by clear and convincing evidence that the parties agreed to conceive a child and to raise the child together" ( Matter of Brooke S.B. v. Elizabeth A.C.C., 28 N.Y.3d at 14, 39 N.Y.S.3d 89, 61 N.E.3d 488 ). While the Court noted that "[a] growing body of social science reveals the trauma children suffer as a result of separation from a primary attachment figure — such as a de facto parent — regardless of that figure's biological or adoptive ties to the children" ( id. at 25, 39 N.Y.S.3d 89, 61 N.E.3d 488 ), the Court also noted that courts "must, however, protect the substantial and fundamental right of biological or adoptive parents to control the upbringing of their children" ( id. at 26, 39 N.Y.S.3d 89, 61 N.E.3d 488 ). The Court was not considering "whether to allow a third party to contest or infringe on those rights; rather, the issue [was] who qualifies as a ‘parent’ with coequal rights" ( id. ).

The Court purposely kept its holding narrow and did not expand it to include all or most stepparents, or all people who could establish a functional equivalency to a parent ( id. at 27–28, 39 N.Y.S.3d 89, 61 N.E.3d 488 ). While rejecting the premise that it was required in that case to "declare that one test would be appropriate for all situations" ( id. at 27, 39 N.Y.S.3d 89, 39 N.Y.S.3d 89, 61 N.E.3d 488 ), the Court noted that, based on the Legislature's "use of the term ‘either,’ the plain language of Domestic Relations Law § 70 clearly limits a child to two parents, and no more than two, at any given time" ( id. at 18 n 3, 39 N.Y.S.3d 89, 61 N.E.3d 488 ). As the reasoning relied upon by Family Court would result in the child having three parents – the mother, the father and the stepmother – who would all simultaneously have standing to seek custody, such reasoning does not comport with the holding in Matter of Brooke S.B. Therefore, to establish standing to seek custody as a nonparent, the stepmother had to demonstrate extraordinary circumstances.

"Notwithstanding Family Court's failure to make the threshold determination regarding extraordinary circumstances, we may independently review the record to make such a determination where, as here, the record has been adequately developed" ( Matter of Roth v. Messina, 116 A.D.3d 1257, 1258–1259, 984 N.Y.S.2d 221 [2014] [citations omitted]; see Matter of Rosso v. Gerouw–Rosso, 79 A.D.3d 1726, 1727, 914 N.Y.S.2d 829 [2010] ; Matter of Michael G.B. v. Angela L.B., 219 A.D.2d 289, 292, 642 N.Y.S.2d 452 [1996] ). "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, disruption of custody over an extended period of time or other extraordinary circumstances" ( Matter of Brown v. Comer, 136 A.D.3d 1173, 1174, 25 N.Y.S.3d 424 [2016] [internal quotation marks, brackets and citations omitted]; see Matter of Curless v. McLarney, 125 A.D.3d 1193, 1195, 4 N.Y.S.3d 666 [2015] ). "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 Brown v. Comer, 136 A.D.3d at 1174, 25 N.Y.S.3d 424 [internal quotation marks, ellipsis and citations omitted] ). Only after the nonparent establishes extraordinary circumstances may a court consider the best interests of the child (see id. at 1176, 25 N.Y.S.3d 424 ; Matter of Banks v. Banks, 285 A.D.2d 686, 687, 726 N.Y.S.2d 795 [2001] ).

This situation is unlike those where a parent simply left a child in the care of a relative, such as a grandparent or cousin (compare Matter of Brown v. Comer, 136 A.D.3d at 1175, 25 N.Y.S.3d 424 ). Here, the child was residing with the other parent – the father – pursuant to a court order. The mother did not originally expressly relinquish the child to the stepmother. Rather, the stepmother assumed parental responsibilities due to her relationship with the father and based on his custodial authority. Nevertheless, in considering the cumulative effect of all the issues, we note that the mother had very little contact with the child for five years, including not seeing him at all for three continuous years, while the child was at a formative age and being raised by the father and the stepmother. Starting in 2012, the mother began consistently exercising her visitation and has continued to do so. However, the mother remained uninvolved in the child's medical and educational life and was only minimally involved in his extracurricular activities. Although she contends that the father did not provide information on these topics when asked, the mother did not exercise her rights under the custody order to obtain such information on her own, nor did she ask the stepmother for information on most of these topics, despite being directed to do so by the father. For example, the mother...