| Matter of Coonradt v Aussicker |
| 2009 NY Slip Op 07531 [66 AD3d 1143] |
| October 22, 2009 |
| Appellate Division, Third Department |
| In the Matter of Jennifer Coonradt, Respondent, v MichaelAussicker, Respondent, and Brender Barber, Appellant. |
—[*1] Marcel J. Lajoy, Albany, for respondent. Kathleen R. Insley, Law Guardian, Plattsburgh.
Rose, J. Appeal from an order of the Family Court of Saratoga County (Hall, J.), enteredFebruary 11, 2008, which granted petitioner's application, in a proceeding pursuant to Family CtAct article 6, to modify a prior order of custody.
Petitioner (hereinafter the mother) voluntarily left her daughter (born in 1992) in the careand custody of the child's maternal grandfather beginning in 1994 or 1995. Thereafter, themother lived at various other locations while keeping custody of, and caring for, a younger child,her son. In 1998, the child's aunt, respondent Brenda Barber, began to also reside with thegrandfather and help care for the child. In 2004, an order was entered with the mother's consentgranting her and the aunt joint custody with physical custody with the aunt. The grandfather diedin 2007. Six months later, the mother commenced this proceeding seeking to modify the priorcustody order by awarding her sole custody of the child. Despite its finding that the child hadbeen in the custody of nonparents for 12 or 13 years and the child's clearly expressed wish toremain with her aunt, Family Court concluded that the extraordinary circumstances needed for a[*2]nonparent to prevail in this custody dispute did not exist suchthat consideration of the child's best interests was not warranted. The court then granted themother's petition, and the aunt now appeals.
A biological parent's superior right to the custody of his or her child may be overcome byproof of, among other things, an "extended period of the nonparental custody, the attachment ofthe child to the custodian, and the child's imminent attainment of majority" (Matter ofBennett v Jeffreys, 40 NY2d 543, 549 [1976]). Relevant "factors to be considered includethe length of time the child has lived with the nonparent, the quality of that relationship and thelength of time the biological parent allowed such custody to continue without trying to assumethe primary parental role" (Matter ofBevins v Witherbee, 20 AD3d 718, 719 [2005]). Here, in addition to a prior consentorder granting custody to the nonparent, there is evidence establishing that the mothersurrendered custody of her child to others for most of the child's life. While the mother gave areason for the joint custody arrangement in 2004, she offered no explanation for also consentingto the aunt's physical custody. In addition, the then almost 16-year-old child testified about thestrong parent-child bond she had with the aunt and her preference to continue in the aunt'scustody. These factors sufficiently demonstrate an extraordinary circumstance (see Matter ofBanks v Banks, 285 AD2d 686, 688 [2001]; Matter of Michael G.B. v Angela L.B.,219 AD2d 289, 293 [1996]).
Thus, Family Court should have proceeded to determine whether the child's interests wouldbest be served by continuing custody with the aunt or changing it to the mother. However,inasmuch as the child is now within six months of her 18th birthday, has been in the mother'scustody for more than 18 months and the Law Guardian on appeal indicates that the child prefersto remain in her mother's custody, we will remit the matter for Family Court to determine thebest interests of the child under the current circumstances while continuing the court's custodyorder pending such further proceedings.
Peters, J.P., Lahtinen, Kane and Malone Jr., JJ., concur. Ordered that the order is reversed,on the law and the facts, without costs, matter remitted to the Family Court of Saratoga Countyfor further proceedings not inconsistent with this Court's decision and, pending said proceedings,physical custody of the child shall continue with petitioner.