| Matter of Howard v McLoughlin |
| 2009 NY Slip Op 05421 [64 AD3d 1147] |
| July 2, 2009 |
| Appellate Division, Fourth Department |
| In the Matter of Mindy L. Howard, Appellant, et al., Petitioner, vShirley McLoughlin, Respondent. |
—[*1] Erickson Webb Scolton & Hajdu, Lakewood (Lyle T. Hajdu of counsel), forrespondent-respondent. Stephanie N. Davis, Law Guardian, Oswego, for April H.
Appeal from an order of the Family Court, Oswego County (Spencer J. Ludington, J.),entered April 8, 2008 in a proceeding pursuant to Family Court Act article 6. The order, insofaras appealed from, granted that part of the motion of respondent to dismiss the petition withrespect to petitioner Mindy L. Howard and dismissed the petition with respect to that petitioner.
It is hereby ordered that the order insofar as appealed from is unanimously reversed on thelaw without costs, the motion is denied in part, the petition with respect to petitioner Mindy L.Howard is reinstated, and the matter is remitted to Family Court, Oswego County, for furtherproceedings in accordance with the following memorandum: Petitioner mother, as limited by herbrief, contends on appeal that Family Court erred in granting the motion of respondent maternalgrandmother to dismiss the mother's petition seeking to modify a prior order awarding custody ofthe mother's child to the grandmother. We agree with the mother that the court erred indismissing the petition without determining whether extraordinary circumstances existed towarrant continued custody with the grandmother and, if so, whether the mother established thatthere has been a change in circumstances such that a modification in custody would be in thebest interests of the child. "It is well established that, as between a parent and a nonparent, theparent has a superior right to custody that cannot be denied unless the nonparent establishes thatthe parent has relinquished that right because of 'surrender, abandonment, persisting neglect,unfitness or other like extraordinary circumstances' " (Matter of Gary G. v Roslyn P.,248 AD2d 980, 981 [1998], quoting Matter of Bennett v Jeffreys, 40 NY2d 543, 544[1976]). The nonparent has the burden of establishing that extraordinary circumstances existeven where, as here, "the prior order granting custody of the child to [the] nonparent[ ] was madeupon consent of the parties" (Matter ofKatherine D. v Lawrence D., 32 AD3d 1350, 1351 [2006], lv denied 7 NY3d717 [2006]; see also Matter of Guinta vDoxtator, 20 AD3d 47, 53 [2005]; Gary G., 248 AD2d at 981). As noted, it isonly after a court has determined that extraordinary circumstances exist that the custody inquirybecomes "whether there has been a change of circumstances requiring a [*2]modification of custody to ensure the best interests of the child"(Guinta, 20 AD3d at 51).
Here, there is no indication in the record that, in the history of the parties' litigation, the courtpreviously made a determination of extraordinary circumstances divesting the mother of hersuperior right to custody (see id.; see generally Bennett, 40 NY2d at 544), andthe record is insufficient to enable us to make our own determination with respect to whetherextraordinary circumstances exist and, if so, whether the mother established a change incircumstances to warrant a modification of the existing custody arrangement in the best interestsof the child (cf. Gary G., 248 AD2d at 981; Matter of Michael G.B. v AngelaL.B., 219 AD2d 289, 292 [1996]). We note that a hearing on the issue of extraordinarycircumstances is not required where the court otherwise possesses sufficient information torender an informed determination on that issue (see generally Matter of Bogdan vBogdan, 291 AD2d 909 [2002]). We therefore reverse the order insofar as appealed from,deny the grandmother's motion in part, reinstate the petition with respect to the mother, and remitthe matter to Family Court to determine, following a hearing if necessary, whether extraordinarycircumstances exist and, if so, whether a change of circumstances requires modification ofcustody to ensure the best interests of the child (see generally Matter of Male Infant L.,61 NY2d 420, 427-429 [1984]; Matter of McDevitt v Stimpson, 281 AD2d 860, 862[2001]). Finally, we reject the contention of the mother that she was denied effective assistanceof counsel (see generally Matter of NagiT. v Magdia T., 48 AD3d 1061 [2008]). Present—Smith, J.P., Centra, Peradotto,Green and Gorski, JJ.