| Matter of Barcellos v Warren-Kidd |
| 2008 NY Slip Op 10617 [57 AD3d 984] |
| December 30, 2008 |
| Appellate Division, Second Department |
| In the Matter of Joan Barcellos, Appellant, v DorrettaWarren-Kidd, Respondent. |
—[*1] Lewis A. Silverman, Central Islip, N.Y. (Jared Behr and Gregory Gillen on the brief), forrespondent. Glenn Gucciardo, Northport, N.Y., attorney for the child.
In a child custody proceeding pursuant to Family Court Act article 6, the mother appealsfrom an order of the Family Court, Suffolk County (Boggio, Ct. Atty. Ref.), dated September 28,2007, which, after a hearing, denied her application to modify a prior order awarding custody ofher child to the paternal aunt and granted the paternal aunt's application to modify the mother'svisitation schedule.
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" (Matter of Danzy v Jones-Moore, 54 AD3d 858 [2008]). A determinationof the best interests of the child is made only if the nonparent meets his or her burden ofestablishing the existence of extraordinary circumstances (see People ex rel. Secor v Acosta,46 AD3d 927 [2007]). Upon a finding of extraordinary circumstances, a court must considerwhether a transfer of custody would be in the best interests of the child (see Matter of Bennettv Jeffreys, 40 NY2d 543, 548 [1976]).[*2]
Here, the mother challenges the Family Court's denial ofher application to modify a previous order awarding custody of her now 11-year-old son to hispaternal aunt, who has cared for the child since he was 4 years old. However, the evidenceestablished that extraordinary circumstances exist based, inter alia, on an extended disruption ofcustody between the mother and the child, the mother's significant medical issues and physicallimitations arising from a stroke, the child's special needs, and the risk of emotional and physicalharm to the child if custody were restored to the mother (see Matter of Ronald I. v James J.,53 AD3d 706, 707-709 [2008]; Matter of West v Turner, 38 AD3d 673, 674 [2007];Matter of Donohue v Donohue, 44 AD3d 1042 [2007]).
The record demonstrates that the paternal aunt has provided the child with a stable, nurturing,and supportive home environment, and the child has thrived in her care. Thus, the Family Courtcorrectly determined that it was in the best interests of the child that custody remain with thepaternal aunt, with whom he has bonded psychologically (see Matter of Wilson v Smith,24 AD3d 562 [2005]).
Furthermore, the Family Court's decision to modify the mother's visitation schedule has asound and substantial basis in the record and should not be disturbed (see Family Ct Act§ 652 [b]; Matter of Thompson v Yu-Thompson, 41 AD3d 487 [2007]).
The mother's remaining contentions are without merit. Prudenti, P.J., Dillon, Eng andLeventhal, JJ., concur.