Matter of Santiago v. Henderson

Matter of Santiago v Henderson (2014 NY Slip Op 08033)

Matter of Santiago v Henderson

2014 NY Slip Op 08033

Decided on November 19, 2014

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on November 19, 2014 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
MARK C. DILLON, J.P.
CHERYL E. CHAMBERS
JEFFREY A. COHEN
JOSEPH J. MALTESE, JJ.

2013-11175
(Docket Nos. V-17194-13, V-17197-13)

[*1]In the Matter of Milagros Angelina Henriquez Santiago, et al., appellants,

v

Leeanders Henderson, respondent-respondent, et al., respondent.

Phillip J. Jusino, Lake Grove, N.Y., for appellants.

Janessa M. Trotto, Holbrook, N.Y., for respondent-respondent.

Margaret Carlo, Bayport, N.Y., attorney for the child.

DECISION & ORDER

In a custody proceeding pursuant to Family Court Act article 6, the petitioners appeal from an order of the Family Court, Suffolk County (Whelan, J.), dated October 30, 2013, which, without a hearing, granted the father's motion to dismiss the petition for lack of standing.

ORDERED that the order is affirmed, with costs.

"As between a parent and a nonparent, the parent has the superior right to custody that cannot be denied unless the nonparent establishes that the parent has relinquished that right due to surrender, abandonment, persistent neglect, unfitness, or other like extraordinary circumstances" (Matter of Wilson v Smith, 24 AD3d 562, 563; see Matter of Bennett v Jeffreys, 40 NY2d 543, 548; Matter of Barcellos v Warren-Kidd, 57 AD3d 984, 985; Matter of Hyde v King, 47 AD3d 813; Matter of Bermeo v Rios, 33 AD3d 613; Matter of Dungee v Simmons, 307 AD2d 312). The burden of proof is on the nonparent to prove such extraordinary circumstances (see Matter of Tristram K., 25 AD3d 222, 226). Absent proof of such extraordinary circumstances, an inquiry into the best interests of the child is not triggered (see Matter of Dungee v Simmons, 307 AD2d at 312-313). Here, the Family Court properly determined that the nonparent petitioners, whose petition to adopt the subject child was correctly denied (see Matter of Baby Girl N. [Anonymous], _____ AD3d _____ [Appellate Division Docket No. 2013-09330; decided herewith]), failed, in this custody proceeding, to allege the existence of extraordinary circumstances. Accordingly, the Family Court properly granted the father's motion to dismiss their custody petition for lack of standing (see Matter of Marquis B. v Alexis H., 110 AD3d 790; see also Matter of Andracchi v Reetz, 106 AD3d 734; Matter of Lampitt v Lampitt, 103 AD3d 897; Matter of Brown v Zuzierla, 73 AD3d 765).

DILLON, J.P., CHAMBERS, COHEN and MALTESE, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court