| Matter of Rovenia G.M. v Lesley P.A. |
| 2007 NY Slip Op 08072 [44 AD3d 942] |
| October 23, 2007 |
| Appellate Division, Second Department |
| In the Matter of Rovenia G.M, Respondent, v Lesley P.A.,Respondent. Leslie N. Spitz, as Law Guardian for the Child, Nonparty Appellant. (Proceeding No.1.) In the Matter of Lesley P.A., Respondent, v Rovenia G.M., Respondent. Leslie N. Spitz, asLaw Guardian for the Child, Nonparty Appellant. (Proceeding No.2.) |
—[*1] Cheryl S. Solomon, Brooklyn, N.Y., for Rovenia G. M., petitioner-respondent in proceedingNo. 1 and respondent-respondent in proceeding No. 2. Steven P. Forbes, Jamaica, N.Y., for Lesley P. A., respondent-respondent in proceeding No.1 and petitioner-respondent in proceeding No. 2.
In two related proceedings pursuant to Family Court Act article 6, the Law [*2]Guardian appeals from (1) an order of the Family Court, KingsCounty (Hepner, J.), dated August 29, 2006, which, after a hearing, inter alia, in effect, deniedthe maternal grandmother's petition for guardianship in proceeding No. 1 and dismissed thatproceeding, and (2) an order of the same court, also dated August 29, 2006, which, after ahearing, inter alia, granted the father's petition for sole custody of the child in proceeding No. 2.By decision and order on motion dated September 21, 2006, enforcement of the orders datedAugust 29, 2006, were stayed pending hearing and determination of the appeals.
Ordered that the orders are reversed, on the law and the facts, without costs or disbursements,and the matter is remitted to the Family Court, Kings County, before a different judge, forcomplete forensic evaluations of the father and the child, for a de novo hearing, in accordanceherewith, which hearing shall be held with all convenient speed, and for a new determination ofthe petitions thereafter; and it is further,
Ordered that pending the new determination of the petitions to be made after a de novohearing, the custody of the child shall remain with the maternal grandmother, and the visitationrights of the father in accordance with the first order dated August 29, 2006 shall remain ineffect.
This appeal involves a custody and guardianship dispute between the child's maternalgrandmother and the child's father. The child (born in 1994) lived with her mother and herbrother until the mother's death in 2004, at which time both the child and her brother went to livewith their maternal grandmother. The maternal grandmother has always been a significant part ofthe child's life. Although the child has never lived with the father, shortly after the mother'sdeath, he filed a petition seeking custody of his then 10-year-old daughter. The maternalgrandmother had filed a petition for guardianship of the child. A hearing was held, where itbecame clear that there was a deep emotional bond between the child and her maternalgrandmother and her brother. After the hearing, in effect, the court denied the maternalgrandmother's petition for guardianship and granted the father's petition for sole custody of thechild, finding that extraordinary circumstances did not exist.
Although the Family Court's determination of whether extraordinary circumstances exist isaccorded great deference (see Matter ofFishburne v Teelucksingh, 34 AD3d 804, 805 [2006]), we find that the record isinadequate to make such a finding. Despite an application by the Law Guardian that forensicevaluations be performed, no evaluations were conducted. Further, at the hearing, the father didnot present any evidence on his behalf. While it was the grandmother's burden to establish theexistence of extraordinary circumstances (see Matter of Esposito v Shannon, 32 AD3d 471, 472 [2006]), thecourt's failure to direct the performance of forensic evaluations deprived the fact-finder ofevidence that would have been highly probative on that issue. There were genuine factual issuesconcerning the father's fitness and the psychological impact of separating the child from hermaternal grandmother and brother. Since the absence of evaluations rendered the recordinsufficient to reach a conclusion regarding extraordinary circumstances, the matter must beremitted to the Family Court, Kings County, so that evaluations of the child and the father maybe made, for a further hearing at which the parties shall have the opportunity to present evidenceon this issue should they so desire, and for a new determination of the petitions thereafter.
In the event that the court deems it appropriate to conduct an in camera [*3]examination of the child, we take this opportunity to remind thecourt of its obligation to utilize questioning methods designed to reduce trauma to childwitnesses (see 22 NYCRR 35.1, 35.2). Schmidt, J.P., Rivera, Krausman and Florio, JJ.,concur.