| Matter of K.F.T. v D.P.G. |
| 2008 NY Slip Op 07250 [54 AD3d 1044] |
| September 30, 2008 |
| Appellate Division, Second Department |
| In the Matter of K.F.T., Respondent, v D.P.G.,Appellant. |
—[*1] Elizabeth M. Niemi, Amityville, N.Y., for respondent. Ngozi Rosaline Asonye, Freeport, N.Y., attorney for the child.
In a child custody proceeding pursuant to Family Court Act article 6, the father appeals froman order of the Family Court, Nassau County (McCormack, J.), dated October 13, 2006, which,after a hearing, granted the maternal grandfather's petition for custody and awarded sole custodyof the subject child to the grandfather, with visitation to him.
Ordered that the order is affirmed, without costs or disbursements.
In a custody proceeding between a parent and a nonparent, "the parent has the superior rightto custody that cannot be denied unless the nonparent establishes that the parent had relinquishedthat right due to surrender, abandonment, persistent neglect, unfitness, or other like extraordinarycircumstances" (Matter of Wilson v Smith, 24 AD3d 562, 563 [2005]; see Matter ofBennett v Jeffreys, 40 NY2d 543, 548 [1976]; Matter of Campo v Chapman, 24AD3d 439 [2005]). The burden is on the nonparent seeking custody of the child to prove theexistence of such extraordinary circumstances (see Matter of Darlene T., 28 NY2d 391,394 [1971]), and absent such proof, an inquiry into the best interests of the child is not triggered(see People ex rel. Secor v Acosta, 46 AD3d 927 [2007]).[*2]
Contrary to the contentions of the father, the FamilyCourt properly determined that the maternal grandfather sustained his burden of demonstratingextraordinary circumstances in this case (see Matter of Cockrell v Burke, 50 AD3d 895,896-897 [2008]; Matter of West v Turner, 38 AD3d 673, 674 [2007]). Moreover, theFamily Court's determination that an award of custody to the maternal grandfather would be inthe best interests of the subject child is supported by a sound and substantial basis in the record,and we discern no basis to disturb it (see generally Matter of Etienne v Sylvain, 47 AD3d930 [2008]; Matter of Mullings v Foster, 40 AD3d 1102 [2007]). Mastro, J.P., Skelos,Covello and Leventhal, JJ., concur.