| Matter of Robert G. v Peter I. |
| 2007 NY Slip Op 06991 [43 AD3d 1162] |
| September 25, 2007 |
| Appellate Division, Second Department |
| In the Matter of Robert G. et al., Respondents, v Peter I.,Appellant. |
—[*1] Michael J. Tomkovitch, Hopewell Junction, N.Y., Law Guardian.
In two related child custody proceedings pursuant to Family Court Act article 6 (one as toeach child), and a related child support proceeding pursuant to Family Court Act article 4, thefather appeals from an order of the Family Court, Dutchess County (Foreman, J.), dated May 10,2006, which, after a hearing, granted the petition of the maternal grandparents to modify a priororder of the same court dated April 20, 2004, awarding the parties joint custody of the children,awarded sole custody of the children to the maternal grandparents, and directed the father to paychild support for the children in the sum of $248 per week and to reimburse the maternalgrandparents the sum of $8,289 for unreimbursed medical expenses they incurred on behalf thechildren.
Ordered that the order dated May 10, 2006 is affirmed, without costs or disbursements.
A prior order of the Family Court dated April 20, 2004, entered on consent of the parties,provided, inter alia, that the father and the maternal grandparents would have joint custody of thesubject children, with the maternal grandparents to have physical custody. In July 2005 thematernal grandparents commenced these proceedings against the father seeking sole custody ofthe children, child support, and reimbursement of certain uncovered medical expenses they hadincurred on behalf of the children.
After a hearing, the Family Court granted the maternal grandparents' petition, and awardedsole custody of the children to them, finding that it was in the children's best interests. We affirm.[*2]
The Family Court erred in reaching the issue of the bestinterests of the children without first making the threshold determination of whether there wereextraordinary circumstances to justify the award of custody to a nonparent where a parent wasalive and available (see Matter ofSilverman v Wagschal, 35 AD3d 747 [2006]; Matter of McDevitt v Stimpson,281 AD2d 860 [2001]). The prior order granting the father and maternal grandparents jointcustody of the children was entered on consent, and as such, it did not obviate the maternalgrandparents' burden to establish the existence of such extraordinary circumstances in support oftheir petition for sole custody (seeMatter of Silverman v Wagschal, 35 AD3d 747 [2006]; Matter of Fishburne v Teelucksingh, 34AD3d 804 [2006]).
Nevertheless, we need not remit the matter to the Family Court for a new hearing, as therecord is adequate to enable this Court to determine that such extraordinary circumstances did infact exist (see Matter of Vincent A.B. vKaren T., 30 AD3d 1100 [2006]). The evidence at the hearing established that, sincerelinquishing the children to the care and physical custody of the maternal grandparents, thefather has rarely visited or contacted the children, and has not contributed to the support of thechildren in any fashion (see Matter ofBevins v Witherbee, 20 AD3d 718 [2005]; Matter of Michelle V. v Lillian P., 1 AD3d 272 [2003]).Moreover, while the father opposed the maternal grandparents' petition for sole custody of thechildren, he did not seek to have physical custody of the children transferred to him. As such, therecord supports a finding that the requisite extraordinary circumstances exist here.
Moreover, we agree with the Family Court that it was in the children's best interests totransfer sole custody to the maternal grandparents, as "joint custody is inappropriate where theparties have evidenced an inability or unwillingness to cooperate in making decisions on mattersconcerning the children" (Matter of Fishburne v Teelucksingh, 34 AD3d at 805), and theevidence presented by both the maternal grandparents and the father unequivocally established alack of communication and cooperation between them. In addition, the father did not object tothe Law Guardian's lack of participation at the hearing, and thus his current contention in thatregard is unpreserved for appellate review (see CPLR 5501 [a] [3]).
Finally, we find no basis to disturb the Family Court's award of child support, calculated inaccordance with the Child Support Standards Act, or the award reimbursing the maternalgrandparents for the amount they incurred in paying for the children's uncovered medicalexpenses. Prudenti, P.J., Santucci, Fisher and Angiolillo, JJ., concur.