| Matter of LaBorde v Pennington |
| 2009 NY Slip Op 02365 [60 AD3d 950] |
| March 24, 2009 |
| Appellate Division, Second Department |
| In the Matter of Mark LaBorde,Appellant-Respondent, v Catherine Pennington, Respondent-Appellant. (Proceeding No.1.) In the Matter of Mark LaBorde, Appellant, v Denise Pennington, Respondent. (ProceedingNo. 2.) In the Matter of Denise Pennington, Respondent, v Mark LaBorde, Appellant.(Proceeding No. 3.) In the Matter of Denise Pennington, Respondent, v Catherine Pennington,Appellant. (Proceeding No. 4.) In the Matter of Catherine Pennington, Respondent-Appellant, vMark LaBorde, Appellant-Respondent. (Proceeding No. 5.) In the Matter of CatherinePennington, Respondent-Appellant, v Mark LaBorde, Appellant-Respondent. (Proceeding No.6.) In the Matter of Catherine Pennington, Appellant, v Denise Pennington, Respondent.(Proceeding No. 7.) |
—[*1] David M. Rosoff, White Plains, N.Y., for Catherine Pennington, respondent-appellant inProceeding Nos. 1, 5, and 6, and appellant in Proceeding Nos. 4 and 7. William E. Penny, Scarsdale, N.Y., for Denise Pennington, respondent in Proceeding Nos. 2,3, 4 and 7. Gregory Salant, White Plains, N.Y., attorney for the child.
In related child custody proceedings pursuant to Family Court Act article 6, the fatherappeals, as limited by his brief, from so much of an order of the Family Court, WestchesterCounty (Duffy, J.), entered May 8, 2007, as, after a hearing, denied his petitions to award himsole custody of the subject child and granted the petitions of the maternal grandmother to modifya prior custody order of the same court entered February 28, 2006, awarding her and the motherjoint custody of the child, so as to award her sole custody of the child, and the mothercross-appeals, inter alia, from stated portions of the order dated May 8, 2007.
Ordered that the order is affirmed insofar as appealed and cross-appealed from, without costsor 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]). This rule applieseven when, as here, there is a prior order granting custody of a child to a nonparent which wasissued on consent of the parties (see Matter of Cockrell v Burke, 50 AD3d 895 [2008]).Once there is a finding of extraordinary circumstances, custody will be determined byconsidering the child's best interests (see Matter of Bennett v Jeffreys, 40 NY2d 543, 548[1976]).
The Family Court properly determined that the maternal grandmother, who has had physicalcustody of the child for an extended period of time, sustained her burden of demonstratingextraordinary circumstances in this case (see Matter of Bevins v Witherbee, 20 AD3d718, 719 [2005]). Moreover, the Family Court's determination that an award of custody to thematernal grandmother would be in the best interests of the subject child is supported by a soundand substantial basis in the record, and we discern no basis to disturb it (see Matter ofBennett v Jeffreys, 40 NY2d 543 [1976]).
The father's and the mother's remaining contentions are without merit. Spolzino, J.P., Dillon,Florio and Angiolillo, JJ., concur.