| Matter of Mercado v Mercado |
| 2009 NY Slip Op 05718 [64 AD3d 951] |
| July 9, 2009 |
| Appellate Division, Third Department |
| In the Matter of Stacy Marie Mercado, Appellant, v Bonnie J.Mercado, Respondent. |
—[*1] Cliff Gordon, Monticello, for respondent. Rebecca Millouras-Lettre, Law Guardian, Kingston.
Stein, J. Appeal from an order of the Family Court of Ulster County (Feeney, J.H.O.),entered October 3, 2008, which, in a proceeding pursuant to Family Ct Act article 6, grantedrespondent's motion to dismiss the petition and amended petition.
Following the birth of the child (born in 2004) who is the subject of this proceeding,petitioner (hereinafter the mother) suffered from postpartum depression and checked herself intoa mental health facility. In June 2005, respondent, the child's maternal grandmother (hereinafterthe grandmother), filed a petition in Family Court seeking custody of the child. An order wasentered on consent awarding temporary custody of the child to the grandmother and allowingextensive weekly supervised visitation for the mother. Two months later, Family Court(Nussbaum, J.) made a final order awarding the grandmother sole custody of the child, withvisitation to the mother at the grandmother's discretion. Although the mother was not present incourt when the order was made, it indicates that it was based upon a stipulation of theparties.[FN*][*2]
The mother subsequently moved to North Carolina,became engaged and gave birth to a second child. In 2007, the mother commenced thisproceeding seeking modification of the prior custody order and requesting sole custody of thechild. The mother also filed a violation petition alleging that the grandmother had interfered withand prevented her visitation with the child. The parties thereafter agreed that the factualallegations of the violation petition would be incorporated in the modification petition and themother agreed to withdraw the violation petition, whereupon Family Court (Feeney, J.H.O.)dismissed the violation petition. The grandmother then moved to dismiss the modificationpetition. The mother opposed that motion and filed an amended petition. Family Court dismissedthe petition and amended petition, prompting this appeal by the mother.
In view of Family Court's failure to make a threshold determination regarding the existenceof extraordinary circumstances, we reverse. It is well settled that a biological parent has asuperior right to custody over the rights of a nonparent and "[t]he [s]tate may not deprive aparent of the custody of a child absent surrender, abandonment, persisting neglect, unfitness orother like extraordinary circumstances" (Matter of Bennett v Jeffreys, 40 NY2d 543, 544[1976]). The burden of proving extraordinary circumstances rests on the nonparent, and the mereexistence of a prior consent order of custody in favor of the nonparent is not sufficient todemonstrate extraordinary circumstances (see Matter of Moore v St. Onge, 307 AD2d421, 422 [2003]). "[U]nless such extraordinary circumstances are proven, Family Court may notexamine what would be in the child['s] best interests" (Matter of Leighton v Bazan, 36 AD3d 1178, 1179 [2007]).
Here, Family Court never held a hearing to determine whether the grandmother hadestablished the existence of extraordinary circumstances (see Matter of McDevitt vStimpson, 281 AD2d 860, 861-862 [2001]). Instead, the court incorrectly placed the burdenon the mother to demonstrate a change in circumstances and proceeded to address the issue ofthe child's best interests without making the threshold determination that extraordinarycircumstances existed. Although we are empowered to make such a determination in appropriatecircumstances (see Matter of Moore v St. Onge, 307 AD2d at 422), the limited recordbefore us on this appeal is insufficient to enable us to do so. Thus, Family Court's order must bereversed and the matter remitted to Family Court for a hearing and further determinationconsidering all appropriate factors (see Matter of Bennett v Jeffreys, 40 NY2d at549-550; Matter of Cumber vO'Leary, 56 AD3d 1067, 1070 [2008]).
We have considered the mother's contention that she received the ineffective assistance ofcounsel and find it to be without merit.
Mercure, J.P., Peters, Malone Jr. and Garry, JJ., concur. Ordered that the order is reversed,on the law, without costs, and matter remitted to the Family Court of Ulster County for furtherproceedings not inconsistent with this Court's decision.
Footnote *: Specifically, the order indicatesthat the mother gave her consent at the previous appearance at which the temporary order wasmade.