| Matter of Bohigian v Johnson |
| 2008 NY Slip Op 01460 [48 AD3d 904] |
| February 21, 2008 |
| Appellate Division, Third Department |
| In the Matter of Lisa Anne Bohigian, Appellant, v BenjaminRaymond Johnson, Respondent. (Proceeding No. 1.) In the Matter of Raymond D. Haag et al.,Respondents, v Lisa Anne Bohigian, Appellant, et al., Respondent. (Proceeding No.2.) |
—[*1] Somma & Sullivan, Vestal (Michael J. Sullivan of counsel), for Raymond D. Haag andanother, respondents. Christopher A. Pogson, Law Guardian, Binghamton.
Rose, J. Appeal from an order of the Family Court of Broome County (Connerton, J.),entered June 6, 2006, which, among other things, granted petitioners' application, in proceedingNo. 2 pursuant to Family Ct Act article 6, for custody of the subject child.
After the parents of a child born in 2001 were separated, the mother, petitioner in proceedingNo. 1, ultimately moved to Texas and then Louisiana and, following her divorce from the child'sfather in 2004, remarried. From June 2003 to the present, the child has resided solely with herpaternal great-grandparents, petitioners in proceeding No. 2 (hereinafter petitioners). A FamilyCourt order entered upon the mother's default in January 2004 gave the father sole custody of thechild, and he in turn gave his written consent to the child's continuing residence with petitioners.Aware of these arrangements, the mother sought no change in custody when she filed for divorcein August 2004. In September 2005, however, the mother commenced proceeding No. 1 formodification of the prior custody order seeking joint custody and the child's primary residencewith her in Louisiana. Petitioners then commenced proceeding No. 2 for custody of the child.Following a combined hearing, Family Court denied the mother's application by grantingpetitioners sole custody, and this appeal ensued.
It is, of course, well settled 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]). Such circumstances can be established,however, where the biological parent has relinquished custody of the child to a nonparent for anextended period of time and failed to utilize the opportunities to visit with the child or resume aparental role (see e.g. Matter of Bevins v Witherbee, 20 AD3d at 719-720; Matter ofIsaiah O. v Andrea P., 287 AD2d 816, 817 [2001]). Also, where, as here, there is conflictingevidence on the relevant issues, we accord great deference to Family Court's credibilitydeterminations because of its opportunity to view the witnesses (see Matter of McDevitt v Stimpson, 1AD3d 811, 812 [2003], lv denied 1 NY3d 509 [2004]).
As in Family Court's decision here, the child has been in the sole custody and care ofpetitioners for most of her life; the mother acquiesced to this arrangement, moved out of NewYork and had only short, sporadic visitation with the child during that time. Considering themother's prolonged absence from the child, and accepting Family Court's factual findings as tothe frequency and quality of her visitation based on its credibility determinations, we find that therecord supports the court's conclusion that petitioners demonstrated the extraordinarycircumstances necessary for the court to consider their application for custody.[*2]
Next, we find ample support in the record for FamilyCourt's conclusion that it is in the child's best interests to reside with petitioners rather than themother (see e.g. Matter of McDevitt v Stimpson, 1 AD3d at 813). Family Court foundpetitioners to be loving and caring persons with a stable home environment, and the child hadstrongly bonded with them over the years while residing with them. As to the mother, the courtcited her instability in changing residence and employment, her use of marihuana and hersporadic visitation with the child. Family Court also found that the impact on the child of havingto move to Louisiana and be separated from petitioners would be too traumatic. We agree withFamily Court that the record shows that the mother had consistently relinquished care and controlof the child to petitioners to pursue her own interests and failed to fully utilize visitation tomaintain a stable parental relationship with the child.
Finally, we reject the mother's contention that it was improper for Family Court to leave theextent of her visitation to the future agreement of the parties rather than specifying a visitationschedule. Given that the mother resides a significant distance from New York, the child isresistant to being away from her great-grandmother and the parties had cooperated in the child'svisitation with the mother in New York in the past, we will not fault the court for first attemptingto have visitation accomplished by agreement and expressly permitting either party to petitionregarding visitation outside of New York if they are unable to agree (compare Matter ofGriffen v Evans, 235 AD2d 720, 722 [1997]).
Peters, J.P., Carpinello, Kane and Malone Jr., JJ., concur. Ordered that the order is affirmed,without costs.