| Matter of Cumber v O'Leary |
| 2008 NY Slip Op 09307 [56 AD3d 1067] |
| November 26, 2008 |
| Appellate Division, Third Department |
| In the Matter of Edward Cumber, Appellant, v Thelma O'Leary,Respondent. (Proceeding No. 1.) In the Matter of Debbie Cumber, Appellant, v TimothyO'Leary et al., Respondents. (Proceeding No. 2.) In the Matter of Timothy O'Leary et al.,Respondents, v Thelma O'Leary, Respondent, and Edward Cumber et al., Appellants.(Proceeding No. 3.) (And Another Related Proceeding.) |
—[*1] Jessica C. Eggleston, Saratoga Springs, for Debbie Cumber, appellant. Claudia A. Russell, Willsboro, for Timothy O'Leary and another, respondents. Nancy E. LeBlanc, Law Guardian, Wilmington.
Kavanagh, J. Appeals from an order of the Family Court of Essex County (Meyer, J.),entered August 28, 2007, which, among other things, granted petitioners' application, inproceeding No. 3 pursuant to Family Ct Act article 6, to modify a prior order of custody.
Edward Cumber (hereinafter the father) and Thelma O'Leary (hereinafter the mother) are theparents of three children (born in 2000 and 2001). The mother and father never married, butstopped living together in 2004, when the mother and three children moved into the home of herparents, Timothy O'Leary and Rosaleen O'Leary (hereinafter the maternal grandparents). Acustody order was issued on consent that awarded the mother and father joint legal custody of thechildren, with the mother having physical custody as long as she continued to reside with thematernal grandparents and, if she moved from that home, the children were to remain with thematernal grandparents. In September 2004, the mother moved from the maternal grandparents'home and the children continued to reside with the maternal grandparents pursuant to the termsof the consent order.
In July 2006, the father filed a modification petition seeking physical custody of the children.His mother, Debbie Cumber (hereinafter the paternal grandmother), and the mother also filedmodification petitions asking that the mother and father be awarded custody of the children, to beshared with the paternal grandmother. While these petitions were pending, the children remainedin the custody of the maternal grandparents.
The trial on these petitions commenced in March 2007. At the outset, Family Courtdismissed the paternal grandmother's petition for failing to state a cognizable claim of custody.The parties eventually agreed to the entry of an order, to become effective in July2007,[FN1] that provided for the mother to be awarded primary physical custody of the children on conditionthat she live with the paternal grandmother. Within weeks after the consent order was signed, butprior to it taking effect, the mother left the paternal grandmother's residence. The maternalgrandparents then commenced their own proceeding, alleging that the mother's move from thepaternal grandmother's home prior to the consent order taking effect constituted a significantchange of circumstance that required a review of the custody order, and sought custody of thechildren.
The father moved to dismiss the maternal grandparents' petition. Family Court denied [*2]the father's motion, vacated the March 2007 consent order andreinstated the father's petition.[FN2] After the hearing, Family Court awarded legal and physical custody of the children to thematernal grandparents. The father and paternal grandmother now appeal.
Initially, we see no error in Family Court's vacatur of the March 2007 consent order. Thisorder was premised upon the mother and children residing with the paternal grandmother.However, only weeks after the consent order was entered, and prior to the children ever taking upresidence in the paternal grandmother's home, the mother moved out of the residence and did notlive with the paternal grandmother for any meaningful period of time after the order was issuedand before it took effect. Family Court's decision to vacate this order was based, in part, on itsfinding that the absence of the mother from the paternal grandmother's residence constituted asignificant change of circumstance in the children's living arrangements, and we find no reason inthe record to disturb it.
As for the father's objection to Family Court's decision to award legal and physical custody ofthe children to the maternal grandparents, a parent has a superior right over a nonparent to thecustody of their children; this may be rebutted, however, if it can be shown that the parent hassurrendered or abandoned his or her right to the child or some other extraordinary circumstanceexists which demonstrates the parent's unfitness to assume responsibility for the child's custodyand future care (see Matter of Bennett v Jeffreys, 40 NY2d 543, 544 [1976]; Matter of Ronald I. v James J., 53AD3d 706, 707 [2008]; Matter ofCampbell v Brewster, 9 AD3d 620, 621 [2004]). In determining whether suchcircumstances exist, "factors to be considered include the length of time the child has lived withthe nonparent, the quality of that relationship and the length of time the biological parent allowedsuch custody to continue without trying to assume the primary parental role" (Matter of Bevins v Witherbee, 20AD3d 718, 719 [2005]). Here, the father did little to initiate contact with the children whilethey resided with the maternal grandparents. He was not involved in their school activities, hadno input in their school schedule and did not interact with their teachers, medical professionals orfriends. Whatever contact he did have with the children was, in almost every instance, initiatedby the paternal grandmother who, during the father's visits with the children, acted as the primarycaregiver. In contrast, the children enjoyed a stable home environment during the 3½ yearsthat they have lived with the maternal grandparents. A plan has been established in the schoolthey attend to address their individual needs. Each child participates in numerous schoolactivities, all three attend religious education classes, and the children have developed asignificant relationship with their maternal aunt and uncle who live nearby. Taken as a whole, theevidence clearly supports Family Court's finding that extraordinary circumstances exist (see Matter of Bohigian v Johnson, 48AD3d 904, 905 [2008]; Matter of McDevitt v Stimpson, 281 AD2d 860, 862[2001]).
Further, Family Court's decision that it is in the best interests of the children to continue theirplacement with the maternal grandparents enjoys ample support in the record (see Matter ofBennett v Jeffreys, 40 NY2d at 544; Matter of Ronald I. v James J., 53 AD3d at707). While the children have expressed a desire to live with their father and paternalgrandmother, the reality is [*3]that the maternal grandparentshave, to date, assumed responsibilities that are normally attendant to a parental relationship. Theyhave provided each child with a wholesome home environment and have been the primary sourceof the children's financial, educational and emotional support. According due deference to FamilyCourt's evaluation of the evidence presented before it, and its determination that the maternalgrandfather's criminal conviction[FN3] is not a disqualifying circumstance, we see no reason to disturb its finding that it is in the bestinterests of the children that they remain in the physical custody of their maternal grandparents(see Matter of Ronald I. v James J., 53 AD3d at 707; Matter of Bohigian vJohnson, 48 AD3d at 905).
The father also argues that Family Court improperly reduced the time that he had beenallotted to visit with his children. While he, in fact, has less time with the children under thecurrent visitation schedule, this change was unavoidable due to the fact that this schedule mustnow include time for the children to visit with their mother.[FN4] In addition, the father's history of exercising his visitation rights has been, at best, sporadic. Assuch, we conclude that Family Court's assessment of the schedule was based on a thoroughexamination of the best interests of the children, and we see no reason to alter it (see Matter of Amber VV., 22 AD3d967, 969 [2005], lv denied 6 NY3d 708 [2006]; Matter of Bevins vWitherbee, 20 AD3d at 720).
Finally, Family Court properly dismissed the paternal grandmother's petition for custody. Wenote that she did not appeal from the March 2007 order that dismissed her petition but, rather,only appeals from the August 2007 order that granted the maternal grandparents custody. In anyevent, in support of her custody petition, the paternal grandmother was required to show theexistence of extraordinary circumstances that would support a claim of custody on her behalf,and we agree with Family Court that she failed to do so (see Domestic Relations Law§ 72; Matter of Carton vGrimm, 51 AD3d 1111, 1113 [2008]; Matter of Robert G. v Peter I., 43 AD3d 1162, 1164 [2007]).
Cardona, P.J., Mercure, Lahtinen and Kane, JJ., concur. Ordered that the order is affirmed,without costs.
Footnote 1: The effective date of the consentorder was delayed so that the children could remain with the maternal grandparents and finish theschool year.
Footnote 2: Due to the failure of the motherto appear at the hearing, she was declared to be in default and her petition was dismissed. She hasnot filed a brief or statement in response to this appeal and has not applied for assignment ofcounsel.
Footnote 3: Family Court noted that thematernal grandfather had been convicted of a crime in connection with his operation of a familybusiness, and was scheduled to be incarcerated for nine months of a 12-month sentence.However, the court found that the maternal grandmother was fully capable of caring for thechildren, and contrasted the maternal grandfather's daily involvement in the children's upbringingand his attendance at trial with that of the paternal grandfather, who was not a party to theseproceedings nor ever appeared in court at any of the hearings or trial.
Footnote 4: The mother previously hadcustody and, thus, the father was the only parent who required such access to the children whenthe initial visitation schedule was established.