| Matter of Danzy v Jones-Moore |
| 2008 NY Slip Op 06989 [54 AD3d 858] |
| September 16, 2008 |
| Appellate Division, Second Department |
| In the Matter of Darius Danzy, Appellant, v TamikaJones-Moore et al., Respondents. (Proceeding No. 1.) In the Matter of Tamika Jones-Moore,Respondent, v Darius Danzy, Appellant. (Proceeding No. 2.) |
—[*1] Moran, Brodrick & Elliot, Garden City, N.Y. (Thomas A. Elliot of counsel), for respondents. Beth A. Rosenthal, North Babylon, N.Y., attorney for the children.
In related child custody proceedings pursuant to Family Court Act article 6, the fatherappeals from an order of the Family Court, Suffolk County (Freundlich, J.), dated April 27, 2006,which, after a hearing, awarded custody of the subject children to a maternal aunt and uncle anddenied him visitation.
Ordered that the order is affirmed, without costs or disbursements.
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 the right due tosurrender, abandonment, persistent neglect, unfitness or other similar extraordinarycircumstances (see Matter of Bennett v Jeffreys, 40 NY2d 543, 545-546 [1976]; Matter of Hyde v King, 47 AD3d813 [2008]; Matter of Wilson vSmith, 24 AD3d 562, 563 [2005]). The burden of proof is on the nonparent to provesuch [*2]extraordinary circumstances (see Matter of Jamison v Chase, 43AD3d 467 [2007]). Absent a finding of extraordinary circumstances, a determination of thebest interests of the child is not triggered (see Matter of Jamison v Chase, 43 AD3d 467 [2007]).
Extraordinary circumstances is a threshold issue which must be determined before the courtaddresses the custodial arrangement that would be in the best interests of the child (see Matterof Moore v St. Onge, 307 AD2d 421, 422 [2003]; Matter of Dungee v Simmons, 307AD2d 312, 313 [2003]). Contrary to the father's contention, the record herein was sufficient todetermine the issue (cf. Matter of Moore v St. Onge, 307 AD2d at 422). Accordingly, thefather's contention that the matter should be remitted to the Family Court, Suffolk County, for ahearing on the issue of extraordinary circumstances is without merit.
Contrary to the Family Court's determination, the record did not support a finding ofextraordinary circumstances based solely on the father's alleged abandonment of the children.Nevertheless, we find that extraordinary circumstances exist here based on the psychological andemotional trauma suffered by the children as a result of the murder of their mother by theirstepfather, coupled with the father's lack of an ongoing relationship with the children due to hisabsence from their lives, whether intentional on his part or not, for approximately three years.Moreover, the Family Court properly determined that, under the circumstances, it was in the bestinterests of the children to award custody to the maternal aunt and uncle, who lived in thechildren's community, played an active part in their lives when the mother was alive, andprovided appropriate care to the children following the loss of the mother.
The Family Court did not improvidently exercise its discretion, under the particularcircumstances of this case, in denying visitation to the father at the time the court made its order.
The father's remaining contentions either are without merit or do not require reversal.
Motion by the respondents on an appeal from an order of the Family Court, Suffolk County,dated April 27, 2006, to strike the appellant's brief in its entirety on the ground that it containsmatter dehors the record or, in the alternative, to strike stated portions of the appellant's brief onthe ground that those portions refer to matter dehors the record. By decision and order on motionof this Court dated March 28, 2008 [2008 NY Slip Op 67975(U)], the motion was held inabeyance and referred to the panel of Justices hearing the appeal for determination upon theargument or submission thereof.
Upon the papers filed in support of the motion, the papers filed in opposition thereto, andupon the submission of the appeal, it is
Ordered that the branch of the motion which is to strike the appellant's brief in its entirety isdenied; and it is further,
Ordered that the branch of the motion which is to strike stated portions of the appellant'sbrief is denied as unnecessary in light of the fact that any improper material has not beenconsidered in determining the appeal. Rivera, J.P., Lifson, Santucci and Miller, JJ., concur.