| Matter of Hyde v King |
| 2008 NY Slip Op 00498 [47 AD3d 813] |
| January 22, 2008 |
| Appellate Division, Second Department |
| In the Matter of Heather Hyde, Respondent, v TinasiaKing, Appellant. |
—[*1] Stephen David Fink, Forest Hills, N.Y., for respondent. Ronna Steinhardt DeLoe, Mamaroneck, N.Y., Law Guardian.
In a child custody proceeding pursuant to Family Court Act article 6, the mother appealsfrom an order of the Family Court, Westchester County (Duffy, J.), dated July 31, 2006, which,after a hearing, granted the paternal grandmother's petition and awarded the paternal grandmothersole custody of the subject child, with visitation to the mother.
Ordered that the order is reversed, on the law, without costs or disbursements, the paternalgrandmother's petition is denied, and the matter is remitted to the Family Court, WestchesterCounty, for a hearing to determine the paternal grandmother's visitation rights, if any.
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 similar extraordinary circumstances(see Matter of Bennett v Jeffreys, 40 NY2d 543, 545-546 [1976]; Matter of Jamison v Chase, 43 AD3d467 [2007]; Matter of West vTurner, 38 AD3d 673 [2007]; Matter of Wilson v Smith, 24 AD3d 562 [2005]; Matter of Campo v Chapman, 24AD3d 439 [2005]). Here, since the Family Court did not explicitly find that the paternalgrandmother established surrender, abandonment, persistent neglect, or unfitness on the part ofthe mother, under the particular circumstances of this case, the Family Court's determination wasimpliedly based upon a determination that the paternal grandmother established extraordinarycircumstances through an "unfortunate or involuntary disruption of custody over an extendedperiod [*2]of time" (Matter of Bennett v Jeffreys, 40NY2d at 546; see Domestic Relations Law § 72 [2] [b]).
At the hearing, testimony was adduced that the subject child, who was born on July 17, 2002,resided with the paternal grandmother during the summer of 2003, in April 2004, and againduring the summer of 2004. However, it was undisputed in each instance that the subject child'sstay was merely a visit and she thereafter was returned to the custody and care of the mother andfather. In October 2004 the mother and father, who were living in Maryland, ended theirrelationship, and the subject child was left with the mother. Several weeks later, on November20, 2004, the mother asked the paternal grandmother, who lived in Westchester County, to carefor the subject child while she "got back on her feet." While the subject child resided with thepaternal grandmother, the mother spoke with the child on the telephone several times, visited hertwice, and gave her a Christmas present. In March 2005 the mother informed the paternalgrandmother that she had found a new job and apartment. The mother thus made arrangements topick up the subject child in New York in April 2005. However, when the paternal grandmothermet the mother at the designated location, she informed the mother that the subject child waswith the father. The father testified at the hearing that, on the night prior to this meeting, he hadthreatened to report the mother to the IRS if she persisted in taking the subject child back. OnJune 8, 2005, less than seven months after the mother first voluntarily relinquished custody of thesubject child to the paternal grandmother, the paternal grandmother filed the instant petition forsole custody of the subject child.
The Family Court's credibility determinations are generally accorded great deference, andonly disturbed if they lack a sound and substantial basis in the record (see Matter of Louise E.S. v W. Stephen S., 64 NY2d 946, 947 [1985]; Matter of Dellolio v Tracy, 35 AD3d 737, 738 [2006]; Matter of Rudy v Mazzetti, 5 AD3d777, 778 [2004]; Matter of Carl J.B. v Dorothy T., 186 AD2d 736 [1992]). However,in custody matters, this Court's authority is as broad as that of the hearing court (see Matter ofLouise E. S. v W. Stephen S., 64 NY2d 946 [1985]; Matter of Carl J.B. v DorothyT., 186 AD2d 736 [1992]). Here, we defer to the hearing court's determination that thepaternal grandmother's testimony was more credible than that of the mother's, as suchdetermination is supported by a sound and substantial basis in the record. However, we disagreewith the hearing court and find that the grandmother's credible testimony failed to establish an"unfortunate or involuntary disruption of custody over an extended period of time" (Matter ofBennett v Jeffreys, 40 NY2d at 546) sufficient to deny custody to the mother. The partiesunderstood that the subject child was to reside with the paternal grandmother only until themother was able to "get back on her feet," the mother contacted and visited with the subject childin the months after November 2004, and she attempted to regain custody of the subject childfrom the paternal grandmother in April 2005 (see Matter of Jamison v Chase, 43 AD3d 467 [2007]; Matter of Jenny L.S. v Nicole M., 39AD3d 1215, 1216 [2007]; Matter of Williams v Dunston, 202 AD2d 681, 682[1994]; Matter of Culver v Culver, 190 AD2d 960, 961 [1993]; Matter of Ashford N.v Hassan A., 88 AD2d 977 [1982]).
Because of the absence of extraordinary circumstances, an inquiry into the child's bestinterests is not triggered (see Matter of Bennett v Jeffreys, 40 NY2d at 548; Matter of Jamison v Chase, 43 AD3d467 [2007]; Matter of Esposito vShannon, 32 AD3d 471, 473 [2006]; Matter of Wilson v Smith, 24 AD3d 562 [2005]; Matter ofKreger v Newell, 221 AD2d 630 [1995]). In any event, even if we were to make such aninquiry, we would find that it is in the child's best interests for the mother to have custody (see Matter of Jody H. v Lynn M., 43AD3d 1318, 1319 [2007]), since the mother has resolved the instabilities in her life thatexisted in November 2004 by remarrying and living in an apartment building superintended byher husband, thus allowing her to live rent free and stay at home to care for her children. Fisher,J.P., Lifson, Covello and McCarthy, JJ., concur.