| People ex rel. Secor v Acosta |
| 2007 NY Slip Op 10565 [46 AD3d 927] |
| December 26, 2007 |
| Appellate Division, Second Department |
| The People of the State of New York ex rel. James Secor et al.,Appellants, v Amy Melissa Acosta, Respondent. |
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In a habeas corpus proceeding, the petitioners appeal, as limited by their brief, from so muchof an order and judgment (one paper) of the Supreme Court, Dutchess County (Pagones, J.),dated May 21, 2007, as, without a hearing, denied that branch of their amended petition whichwas for custody of the subject children, and, in effect, dismissed that part of the proceeding.
Ordered that the order and judgment is reversed insofar as appealed from, on the law, withoutcosts or disbursements, that branch of the amended petition which was for custody of the subjectchildren is reinstated, and the matter is remitted to the Supreme Court, Dutchess County, for ahearing and new determination in accordance herewith.
As between a parent and a nonparent, the parent has the superior right to custody that cannotbe denied unless the nonparent establishes that the parent has relinquished that right due tosurrender, abandonment, persistent neglect, unfitness, or other "extraordinary circumstances"(Matter of Bennett v Jeffreys, 40 NY2d 543, 548 [1976]; see Matter of West v Turner, 38 AD3d673 [2007]; Matter of Wilson vSmith, 24 AD3d 562, 563 [2005]; Domestic Relations Law § 72 [2] [a]). Such"extraordinary circumstances" may exist not only in cases of surrender, abandonment, persistentneglect, and unfitness, but also where there has been an "unfortunate or involuntary disruption ofcustody over an extended period of time" (Matter of Bennett v Jeffreys, 40 NY2d at 546;see Matter of West v Turner, 38 AD3d at 674; Domestic Relations Law § 72 [2][a], [b]). A determination of the best interests of the child in this situation is made only if thenonparent meets his or her burden of establishing the existence of extraordinary circumstances(see Matter of Jamison v Chase, 43 AD3d [*2]467[2007]; Matter of Esposito vShannon, 32 AD3d 471, 473 [2006]; Matter of Wilson v Smith, 24 AD3d at563).
In support of their amended petition, the petitioners, who are the parents of the subjectchildren's deceased father, alleged, among other things, that prior to the father's death, they raisedthe children with the father and fulfilled all of the children's needs. The petitioners further allegedthat during much of that time, the mother, who abused drugs, and who faced criminal chargesstemming from her drug abuse, elected not to be a part of the children's lives.
These allegations, if true, might support a finding that extraordinary circumstances exist(see Domestic Relations Law § 72 [2] [a], [b]; Matter of Campo v Chapman, 24 AD3d 439 [2005]; Matter ofDePaola v Corrales, 303 AD2d 586, 587 [2003]; Matter of Scott L. v Bruce N., 126AD2d 157, 161-162 [1987]; cf. Wohlfahrt v Drees, 103 AD2d 1028 [1984]). Thus, thematter must be remitted to the Supreme Court, Dutchess County, for a hearing to determinewhether extraordinary circumstances are present, and if so, whether the best interests of thechildren warrant that the branch of the amended petition which is for custody be granted. Mastro,J.P., Santucci, Lifson and Covello, JJ., concur.