| Matter of Jodoin v Billings |
| 2007 NY Slip Op 07982 [44 AD3d 1244] |
| October 25, 2007 |
| Appellate Division, Third Department |
| In the Matter of Mary S. Jodoin, Respondent, v Todd Billings,Appellant. |
—[*1] Niles, Piller & Bracy, Lake Placid (Michael B. Fisher of counsel), for respondent. Aaron Turetsky, Law Guardian, Keeseville.
Lahtinen, J. Appeal from an order of the Family Court of Clinton County (Lawliss, J.),entered December 19, 2005, which granted petitioner's application, in a proceeding pursuant toFamily Ct Act article 6, for custody of respondent's child.
Respondent and his deceased wife, Jamie Billings, are the parents of a son born in 1997. OnJune 27, 2005, they left the child in the care of petitioner (Jamie Billings's mother) while theywent boating on Lake Champlain. Respondent was operating the boat, with Billings and twoothers as passengers. Respondent reportedly smoked marihuana and then consumed variousalcoholic beverages throughout the excursion. In the dark, early morning hours of June 28, 2005,respondent was operating the boat at a rapid speed—despite repeated urging to slowdown—when the boat struck a rocky breakwater. Billings died of injuries sustained in theaccident. Respondent was charged with several crimes, including boating while intoxicated andcriminally negligent homicide.
The child remained with petitioner following the accident as respondent was hospitalized.Petitioner eventually commenced the current proceeding seeking temporary as well as permanentcustody of the child. Family Court awarded petitioner temporary custody with visitation forrespondent. A fact-finding hearing followed in which extensive testimony was [*2]presented over several days. Respondent, whose criminal trial hadnot yet commenced,[FN*] elected not to testify at the fact-finding hearing. Family Court rendered a written decision findingthat respondent was an unfit parent based upon, among other things, his chronic alcoholism,regular use of illegal drugs and repeated domestic violence perpetrated upon Billings. Inweighing the best interests of the child, Family Court concluded that petitioner should receivecustody with respondent afforded liberal visitation subject to various conditions, including notpossessing or using illegal drugs and not consuming alcohol during any visitation or 12 hoursprior thereto. Respondent appeals.
It is a settled precept that "a biological 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,unfitness, disruption of custody over an extended period of time or other extraordinarycircumstances" (Matter of Marx vTucker, 36 AD3d 1125, 1126-1127 [2007] [internal quotation marks and citationsomitted]; accord Matter of Bevins vWitherbee, 20 AD3d 718, 719 [2005]; Matter of Gray v Chambers, 222 AD2d753, 753 [1995], lv denied 87 NY2d 811 [1996]). Recognizing that courts are "powerlessto supplant parents except for grievous cause or necessity" (Matter of Bennett v Jeffreys,40 NY2d 543, 546 [1976]), the extraordinary circumstances necessary for a nonparent to gaincustody over a parent are narrowly construed (see Matter of Marx v Tucker, 36 AD3d at1127). "Only if such extraordinary circumstances are proven will the court examine the bestinterests of the child" (Matter ofCampbell v Brewster, 9 AD3d 620, 621 [2004] [citation omitted]). Where, as here, thereis conflicting evidence, we typically defer to Family Court's credibility determinations because ofits opportunity to view the witnesses (see Matter of McDevitt v Stimpson, 1 AD3d 811, 812 [2003],lv denied 1 NY3d 509 [2004]).
As detailed in Family Court's decision, respondent has had an acute alcohol problem foryears. He was previously before Family Court and was ordered to participate in substance abusetreatment, which he failed to do. His abuse of alcohol ostensibly was a significant factor leadingto repeat episodes of violent and grossly irresponsible conduct. When intoxicated, he hadattempted to operate a motor vehicle with the child as a passenger. On the date of the fatalboating accident, respondent was intoxicated and one of the passengers was a minor. He usedmarihuana and cocaine, including smoking marihuana on the date of the accident with the minorpassenger (a 16-year-old female). Respondent subjected his wife to verbal and physical abuse,including while the child was present in the home. His wife had sought assistance from STOPDomestic Violence and had obtained a protective order at one time, although the stay awayprovision was eventually removed with her consent when they reconciled. Despite repeatedrequests that he slow down (including such pleas by the minor passenger), respondent operatedthe boat on the subject evening with alleged criminal negligence that resulted in the death of thechild's mother. Considered cumulatively and accepting Family Court's factual findings based onits credibility determinations, we are unpersuaded to set aside its determination of respondent'sunfitness.
Next, we consider whether it is in the child's best interests to reside with petitioner. FamilyCourt found petitioner to be a loving and caring person with stable employment. She had [*3]regular contact with the child since his birth and the child lived withher following the accident. While Family Court noted some concerns, its conclusion that placingcustody with petitioner was in the child's best interests is supported by the record.
Crew III, J.P., Peters, Spain and Kane, JJ., concur. Ordered that the order is affirmed, withoutcosts.
Footnote *: He was later convicted ofcriminally negligent homicide for the death of his wife and sentenced to a prison term of 1 to 3years.