| Matter of Carton v Grimm |
| 2008 NY Slip Op 04027 [51 AD3d 1111] |
| May 1, 2008 |
| Appellate Division, Third Department |
| In the Matter of Barbara Carton et al., Appellants, v AmandaGrimm, Respondent, et al., Respondent. |
—[*1] Mitch Kessler, Cohoes, for Amanda Grimm, respondent. Isabelle Rawich, Law Guardian, South Fallsburg.
Peters, J.P. Appeal from an order of the Family Court of Sullivan County (Ledina, J.),entered March 22, 2007, which dismissed petitioners' application, in a proceeding pursuant toFamily Ct Act article 6, for custody of respondents' children.
Respondents are the parents of three children born in 2001, 2003 and 2004 (hereinafterreferred to as the oldest, middle and youngest child, respectively). During most of 2002, bothrespondents were incarcerated. The oldest child, who was initially placed in the care of an auntand uncle, later came to live with the maternal grandmother, petitioner Barbara Carton(hereinafter the grandmother). Thereafter, the grandmother was awarded joint custody with themother by order dated November 25, 2002. After both parents were released from prison, theoldest child remained with the grandmother. The mother was later returned to prison and gavebirth to the middle child while incarcerated. In December 2004, the grandmother was awardedtemporary custody of the middle child which was later modified to a joint custody order betweenthe grandmother and the mother in March 2005. The youngest child remained with the mother.
In December 2005, petitioners—the grandmother and herhusband—commenced this [*2]proceeding for sole legalcustody of all three children. In March 2006, they were awarded temporary custody of theyoungest child. After a hearing, during which all parties except the biological father wererepresented by counsel, Family Court determined that petitioners had not met their burden ofestablishing extraordinary circumstances, dismissed their petition and awarded sole custody ofthe children to respondents. Petitioners appeal.
On appeal, petitioners contend that Family Court erred in finding that they did not meet theirburden of demonstrating extraordinary circumstances as to all three children. Moreover, theyspecifically assert that Family Court applied the incorrect standard of law when it failed to findextraordinary circumstances pursuant to Domestic Relations Law § 72 (2) (b) as to theoldest child, who had remained in their care and custody for more than 24 months.
The custody petition at issue, verified on December 28, 2005, sets forth specific acts ofcommission and omission on the part of respondents which purportedly demonstratedextraordinary circumstances sufficient to cause Family Court to address the best interests of thethree children and grant custody to petitioners. It did not specifically assert an "extendeddisruption of custody" as defined in Domestic Relations Law § 72 (2) (b).[FN*]
Family Court held a lengthy attenuated hearing concerning the petition and rendered awritten decision, but did not specifically address whether the prolonged separation of the oldestchild from her parents constituted extraordinary circumstances pursuant to Domestic RelationsLaw § 72 (2) (b). While Family Court's findings of fact in this proceeding are entitled todeference provided they have a sound and substantial basis in the record (see Matter of Gravelding v Loper, 42AD3d 740, 742 [2007]), particularly because Family Court has had the opportunity toobserve the witnesses and assess their credibility (see Matter of McDevitt v Stimpson, 1 AD3d 811, 812 [2003],lv denied 1 NY3d 509 [2004]), the error asserted here is one of law, rather than fact.[*3]
Initially, we reject the mother's contention thatpetitioners' failure to assert that their claim fell within the provisions of Domestic Relations Law§ 72 (2) (b) constitutes a failure to preserve such claim for appellate review. The statute atissue specifically provides that an extended disruption of custody, defined therein, constitutes anextraordinary circumstance. It need not be specifically pleaded, only proven.
The oldest child, age four at the time the petition was filed, had resided with her mother andfather for only the first 2½ months of her life. Upon the mother's release from prison, as acondition of parole, she and the middle child moved in with petitioners and the oldest child.Testimony revealed that the mother would leave both children and disappear for several days at atime to spend time with the father, who was not welcome in the home. During this time, thefather had no contact with either child. Eventually the mother moved in with the father, takingthe middle child with her and leaving the oldest child behind.
We find that the evidence concerning respondents' conduct with regard to the oldest childproved an extended disruption of custody pursuant to Domestic Relations Law § 72 (2). Tobe sure, for a brief period the mother did reside in petitioners' household with the oldest child,but there is absolutely no evidence that she exercised any care or control over the child (compare Matter of Fishburne vTeelucksingh, 34 AD3d 804, 805 [2006]). Thus, with the oldest child in petitioners'custody for nearly three years, the statutory prerequisite was met. Moreover, the record revealsthat for almost every day of this child's life, it was petitioners who primarily provided for herphysical, medical, financial, educational and psychological needs with little involvement of themother and even less of the father. Thus, Family Court should have found extraordinarycircumstances as to the oldest child and proceeded to a best interest hearing concerning thatchild's custody (see Matter of Bevins vWitherbee, 20 AD3d 718, 719-720 [2005]). Mindful that separation of siblings is afactor to be considered, we leave it to Family Court, upon remittal, to determine whether theoldest child's best interests would be served by an award of custody to petitioners. In all otherrespects, we find no basis to disturb Family Court's order.
Spain, Rose, Lahtinen and Kavanagh, JJ., concur. Ordered that the order is modified, on thelaw, without costs, by reversing so much thereof as dismissed the petition as to the oldest child;matter remitted to the Family Court of Sullivan County for further proceedings not inconsistentwith this Court's decision; and, as so modified, affirmed.
Footnote *: In October 2003, DomesticRelations Law § 72 was amended to specifically provide that an extended disruption ofcustody constituted extraordinary circumstances. Such term was defined to include "a prolongedseparation of the respondent parent and the child for at least twenty-four continuous monthsduring which the parent voluntarily relinquished care and control of the child and the childresided in the household of the petitioner grandparent or grandparents, provided, however, thatthe court may find that extraordinary circumstances exist should the prolonged separation havelasted for less than twenty-four months" (Domestic Relations Law § 72 [2] [b]).Amendments to Domestic Relations Law § 72 and Family Ct Act § 651 wereenacted in recognition of the "special role" which grandparents played in the lives of theirgrandchildren and how, over time, they had been increasingly functioning as caregivers in suchchildren's lives (see Matter of Tolbert vScott, 15 AD3d 493, 495 [2005]).