| Matter of Bennor v Hewson |
| 2008 NY Slip Op 00391 [47 AD3d 1136] |
| January 24, 2008 |
| Appellate Division, Third Department |
| In the Matter of Mona Bennor, Appellant, v Susan Hewson et al.,Respondents, et al., Respondent. (And Another Related Proceeding.) |
—[*1] Marcel J. Lajoy, Albany, for Joseph R. Young, respondent. G. Scott Walling, Law Guardian, Queensbury.
Malone, J. Appeal from an order of the Family Court of Clinton County (Lawliss, J.), enteredDecember 1, 2006, which, among other things, dismissed petitioner's application, in twoproceedings pursuant to Family Ct Act article 6, for custody of the subject child.
Petitioner, who suffers from a hearing impairment, gave birth to a daughter on December 28,1991. Shortly after her birth, the child was hospitalized for breathing difficulties and she wasdischarged with an apnea monitor to the care of respondent Susan Hewson (hereinafterrespondent), petitioner's maternal aunt. This was done in accordance with a childcare plandevised by the Clinton County Department of Social Services and was to continue until themonitor was no longer needed. The child was 4½ months old when she came to live withrespondent and her husband. Although the couple separated thereafter, the child continued to livewith respondent and her sons, and maintained a relationship with respondent's husband. She hadno contact with her biological father. Petitioner acquiesced in respondent's care of the child formore than 14 years and did not seek custody until July 2006 when she filed the instant custodypetition. Respondent, in turn, filed a cross petition for custody. Following a hearing, [*2]Family Court awarded sole custody of the child to respondent anddid not make any provision for visitation by petitioner. Petitioner now appeals.
Preliminarily, we note that a biological parent's claim of custody of his or her child issuperior to that of a nonparent unless the nonparent establishes that the parent has relinquished itby "surrender, abandonment, persistent neglect, unfitness, disruption of custody over an extendedperiod of time or other extraordinary circumstances" (Matter of Gray v Chambers, 222AD2d 753, 753 [1995], lv denied 87 NY2d 811 [1996]; see Matter of Bennett vJeffreys, 40 NY2d 543, 546 [1976]). In determining whether extraordinary circumstancesexist due to the disruption of custody, "factors to be considered include the length of time thechild has lived with the nonparent, the quality of that relationship and the length of time thebiological parent allowed such custody to continue without trying to assume the primary parentalrole" (Matter of Bevins vWitherbee, 20 AD3d 718, 719 [2005]; see Matter of Gale v Gray, 39 AD3d 903, 905 [2007]). Onceextraordinary circumstances have been established, the controlling consideration in determiningcustody is the best interest of the child (see Matter of Bennett v Jeffreys, 40 NY2d at 548;Matter of Campo v Chapman, 24AD3d 439, 440 [2005], lv denied 6 NY3d 709 [2006]).
In the case at hand, the disruption of custody was initially occasioned by the child's medicalcondition which necessitated her placement with respondent. Petitioner, however, waited morethan 14 years, long after the medical condition had resolved, to attempt to regain custody and didnot offer any reason for her failure to act sooner. Petitioner testified that she saw the child nearlyevery day until the child was 10 years old and very often thereafter. Respondent, on the otherhand, stated that the contact was frequent during the first year, but that it progressively decreasedto the point where petitioner only saw the child two or three times in the 10 months preceding thecommencement of these proceedings. In addition, uncontradicted evidence was presented thatpetitioner did not inquire about the child's health or schooling and did not contribute to herfinancial support. Further evidence was presented that, after the child became a teenager,petitioner harassed her at family gatherings, while she was babysitting and in the presence offriends, and that such harassment escalated to the point that the child sent her a letter essentiallycutting petitioner out of her life. In view of the foregoing, and given the deference to be accordedFamily Court's credibility determinations (see Matter of Jodoin v Billings, 44 AD3d 1244, 1245 [2007]), wefind that extraordinary circumstances have clearly been demonstrated (see e.g. Matter ofCampo v Chapman, 24 AD3d at 439-440; Matter of Ruggieri v Bryan, 23 AD3d 991, 992 [2005]). Therefore,we now consider which custody arrangement would be in the child's best interest.
Considerable evidence was presented at the hearing that respondent has provided a secureand stable home environment for the child. The child is subject to household rules, is succeedingin school and does not have disciplinary problems. She maintains a close relationship withrespondent's sons, whom she regards as her brothers, and still has contact with respondent'shusband. Both a close family friend, as well as the child's biological father, testified that the childshould remain in respondent's care and the child also expressed her desire to do so. Notably, noneof the allegations asserted by petitioner concerning the unsuitability of respondent's home wasever substantiated at the hearing, and petitioner was unable to articulate persuasive reasons forgranting custody to her. Consequently, we find no reason to disturb Family Court's finding that itwas in the child's best interest for respondent to retain custody.
Petitioner also takes issue with Family Court's failure to grant her, at the very least,supervised visitation with the child. While visitation with a noncustodial parent is generally[*3]presumed to be in the child's best interest, it will be denied ifthere is substantial proof that it would be detrimental to the child's welfare (see Matter of Conklin v Hernandez, 41AD3d 908, 910 [2007]; Matter of Williams v Tillman, 289 AD2d 885, 885 [2001]).As noted above, significant testimony was adduced at the hearing regarding petitioner's harassingand emotionally abusive conduct toward the child, including an incident in which she physicallythreatened respondent in the child's presence, and others in which she stalked the child at herhome. The child testified that she is afraid of petitioner and does not wish to see her. Inasmuch asvisitation would be upsetting and potentially harmful to the child under the presentcircumstances, we find no reason to disturb Family Court's order. Petitioner's remainingcontentions have been considered and are without merit.
Cardona, P.J., Spain, Carpinello and Kane, JJ., concur. Ordered that the order is affirmed,without costs.