| Matter of Gilchrest v Patterson |
| 2008 NY Slip Op 08126 [55 AD3d 833] |
| October 21, 2008 |
| Appellate Division, Second Department |
| In the Matter of Nettie Gilchrest, Respondent, v Alisa Patterson,Appellant. (Proceeding No. 1.) In the Matter of Alisa Patterson, Appellant, v Nettie Gilchrest,Respondent. (Proceeding No. 2.) |
—[*1] Marc J. Bagan, Ossining, N.Y., for respondent. Steven P. Kmetz, White Plains, N.Y., attorney for the child.
In two related child custody proceedings pursuant to Family Court Act article 6, the motherappeals, as limited by her brief, from so much of an order of the Family Court, Westchester County(Davidson, J.), entered July 25, 2007, as, after a hearing, denied her petition and granted the separatepetition of the paternal grandmother for custody of the subject child.
Ordered that the order is affirmed insofar as appealed from, without costs or disbursements.
As between a parent and a nonparent, the parent has the superior right to custody that cannot bedenied unless the nonparent establishes that the parent has relinquished that right due to surrender,[*2]abandonment, persistent neglect, unfitness, or similar extraordinarycircumstances (see Matter of Bennett v Jeffreys, 40 NY2d 543, 548 [1976]; Matter of Fishburne v Teelucksingh, 34AD3d 804 [2006]; Matter of General vGeneral, 31 AD3d 551, 552 [2006]; Matter of Wilson v Smith, 24 AD3d 562, 563 [2005]; Matter of Rudy v Mazzetti, 5 AD3d777, 778 [2004]; Matter of Dungee v Simmons, 307 AD2d 312, 312-313 [2003]).Here, the paternal grandmother of the now 14-year-old child, who has supported and cared for thechild since she was four months old with no contribution from the mother, satisfied her burden ofestablishing extraordinary circumstances on the basis of an "extended disruption of custody" duringwhich the mother had "voluntarily relinquished care and control of the child" to the paternal grandmother(Domestic Relations Law § 72 [2] [b]; see Matter of Carton v Grimm, 51 AD3d 1111, 1113 [2008], lvdenied 10 NY3d 716 [2008]; Matter ofTraci M.S. v Darlene C., 37 AD3d 1083, 1084 [2007]; cf. Matter of Hyde v King, 47 AD3d 813, 815 [2008]; Matter of Tolbert v Scott, 42 AD3d548, 549 [2007]).
Inasmuch as the Family Court is in the best position to evaluate the testimony, character,temperament, and sincerity of the parties, its findings are entitled to great weight and should not be setaside where they have a sound and substantial basis in the record (see Matter of Miller v Shaw, 51 AD3d 927 [2008], lv denied11 NY3d 706 [2008]; Matter of Garcia vPerez, 48 AD3d 812, 813 [2008]; Matter of Fishburne v Teelucksingh, 34 AD3d 804, 805 [2006]; Matter of Cambridge v Cambridge, 13AD3d 443, 444 [2004]; Matter of Rudyv Mazzetti, 5 AD3d 777, 778 [2004]). The Family Court's determination that the bestinterests of the child require that she remain in the custody of the paternal grandmother has such a basis.Accordingly, its determination must be affirmed. Santucci, J.P., Dillon, Dickerson and Chambers, JJ.,concur.