Matter of Elizabeth SS. v. Gracealee SS. ( 2016 )

State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: January 7, 2016 518260
________________________________
In the Matter of ELIZABETH SS.,
Respondent,
v MEMORANDUM AND ORDER
GRACEALEE SS.,
Appellant,
et al.,
Respondent.
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Calendar Date: November 19, 2015
Before: Lahtinen, J.P., McCarthy, Egan Jr., Lynch and
Devine, JJ.
__________
Allen E. Stone Jr., Vestal, for appellant.
Paul R. Corradini, Elmira, for Elizabeth SS., respondent.
Michael P. Graven, Owego, attorney for the child.
__________
Lynch, J.
Appeal from an order of the Family Court of Chemung County
(Argetsinger, J.H.O.), entered December 19, 2013, which granted
petitioner's application, in a proceeding pursuant to Family Ct
Act article 6, to modify a prior order of custody.
Petitioner (hereinafter the mother) is the mother and
respondent Gracealee SS. (hereinafter the grandmother) is the
paternal grandmother of a child born in 2007. The mother and
respondent Eric SS. (hereinafter the father) were married but, in
2010, the mother left the marital residence due to alleged
domestic violence and moved into a domestic violence shelter,
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leaving the child in the grandmother's care. Thereafter, in June
2010, Family Court awarded legal and physical custody of the
child to the grandmother with limited parenting time to the
mother. The parties continued to appear before the court
periodically, and additional orders were entered that, insofar as
is relevant here, increased the mother's parenting time and, in
January 2011, awarded the mother joint legal custody to be shared
with the father and the grandmother. In June 2013, the mother
petitioned for full custody of the child. Following a fact-
finding hearing, Family Court granted physical custody to the
mother, joint legal custody to the mother and father, and allowed
the grandmother and the father limited visitation and parenting
time. The grandmother now appeals.1
The grandmother contends that Family Court erred when it
determined that there were no extraordinary circumstances to
award custody to a nonparent. It is well settled that, in the
absence of extraordinary circumstances such as surrender,
abandonment, persistent neglect, unfitness or an extended period
of custody disruption, a parent has a claim of custody to his or
her child superior to all others (see Matter of Lina Y. v Audra
Z., 132 AD3d 1086, 1086 [2015]; Matter of Ferguson v Skelly, 80
AD3d 903, 904 [2011], lv denied 16 NY3d 710 [2011]). Here, since
no finding of extraordinary circumstances had previously been
made, the grandmother bore "the heavy burden of first
establishing the existence of extraordinary circumstances to
overcome the . . . parents' superior right of custody" (Matter of
Aida B. v Alfredo C., 114 AD3d 1046, 1048 [2014]; see Matter of
Rumpff v Schorpp, 133 AD3d 1109, 1110 [2015]). Only upon such a
showing would Family Court proceed to address the issue of the
child's best interests (Matter of Rumpff v Schorpp, 133 AD3d at
1110). Relevant here, "a prolonged separation of the . . .
parent and the child for at least [24] continuous months during
which the parent voluntarily relinquished care and control of the
child and the child resided in the household of [a] grandparent"
may constitute a disruption of custody sufficient to demonstrate
extraordinary circumstances (Domestic Relations Law § 72 [2] [b];
1
The father has submitted a letter to this Court to advise
that he supports the grandmother's appeal.
-3- 518260
accord Matter of Ferguson v Skelly, 80 AD3d at 904; see Matter of
Gale v Gray, 39 AD3d 903, 904 [2007]). "An order placing a child
in a nonparent's custody upon a parent's consent is neither a
judicial finding nor an admission of extraordinary circumstances"
(Matter of Rumpff v Schorpp, 133 AD3d at 1110 [citation omitted];
see Matter of Liz WW. v Shakiria XX., 128 AD3d 1118, 1120 [2015],
lv dismissed 25 NY3d 1195 [2015]). Moreover, if the parent
spends the period of separation trying to regain custody of his
or her child, that period would not necessarily support a finding
of extraordinary circumstances (see Matter of Gale v Gray, 39
AD3d at 904-905).
Here, the mother initially allowed the grandmother to care
for the child because the child was not allowed at the domestic
violence shelter – a decision characterized by Family Court as a
"temporary emergency situation." In July 2010, the mother
relocated approximately one hour away to be closer to her
parents. She began living with a childhood friend and worked
caring for his children during the day. That relationship turned
from platonic to romantic, they had a child and they are now
engaged to be married. During the three years that the
grandmother had primary physical custody of the child, the mother
endeavored to establish a stable environment for herself and the
child and repeatedly attempted to regain custody. As noted by
Family Court, the grandmother was not supportive of the mother's
efforts to see the child, and the grandmother's repeated
allegations that the mother was not fit were deemed to be
unfounded. Although the attorney for the child contends that
Family Court should have given greater weight to the testimony of
the therapist who sees the child at his school, it is well
settled that, in custody cases, Family Court's assessment of the
reliability of evidence and its credibility determinations are
entitled to our deference (see Matter of Ettari v Peart, 110 AD3d
1256, 1257-1258 [2013]). In our view, there is a sound and
substantial basis in the record for Family Court's determination
that the grandmother did not demonstrate the existence of
extraordinary circumstances (see Matter of Mildred PP. v Samantha
QQ., 110 AD3d 1160, 1161 [2013]).
Lahtinen, J.P., McCarthy, Egan Jr. and Devine, JJ., concur.
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ORDERED that the order is affirmed, without costs.
ENTER:
Robert D. Mayberger
Clerk of the Court