| Matter of VanDee v Bean |
| 2009 NY Slip Op 07704 [66 AD3d 1253] |
| October 29, 2009 |
| Appellate Division, Third Department |
| In the Matter of Denise VanDee, Respondent, v CasciBean, Appellant-Respondent, and Aaron Bean, Respondent-Appellant. (And Two Other RelatedProceedings.) |
—[*1] Patrick A. Perfetti, Cortland, for respondent-appellant. Denise VanDee, Truxton, respondent pro se. Meira N. Hertzberg, Law Guardian, Ithaca.
Garry, J. Cross appeals from an order of the Family Court of Cortland County (Ames, J.),entered September 26, 2008, which partially granted petitioner's application, in threeproceedings pursuant to Family Ct Act article 6, for custody of the subject child.
Respondent Casci Bean (hereinafter the mother) married respondent Aaron Bean (hereinafterthe father) in January 2005 and gave birth in June 2005 to the child who is the subject of thisproceeding. The family lived together in Virginia until the following April, when the father, whohas served in the Navy since 2003, was deployed to sea. Immediately upon his return in May2006, the mother advised the father that she wanted a divorce, left the residence with the child,and moved to New York. The child thereafter lived sporadically with petitioner, [*2]the maternal grandmother, in the Town of Cuyler, Cortland County,and consistently with petitioner after August 2007. The father commenced a divorce action inFlorida in November 2007. By petition and amended petition, petitioner commenced custodyproceedings. In February 2008, Family Court issued a temporary order granting custody topetitioner. The father and mother then separately cross-petitioned for custody. After afact-finding hearing, the court granted temporary joint custody to petitioner and the father untilMay 31, 2009, when the father was expected to return to Florida from an overseas deployment.After that date, the father was awarded sole custody, with visitation to petitioner for severalweeks each year and visitation to the mother to take place in Florida once monthly for six hoursupon seven days notice, and also during the child's visits with petitioner. The mother and fathernow cross-appeal.
In a custody dispute between a parent and a nonparent, the parent's claim is superior "in theabsence of surrender, abandonment, persistent neglect, unfitness, disruption of custody over anextended period of time or other extraordinary circumstances" (Matter of Gray vChambers, 222 AD2d 753, 753 [1995], lv denied 87 NY2d 811 [1996]; seeMatter of Bennett v Jeffreys, 40 NY2d 543, 546 [1976]). Only when the nonparent meets theburden of proving that such extraordinary circumstances exist may the court proceed to considerwhether the best interests of the child require an award of custody to the nonparent (seeMatter of McDevitt v Stimpson, 281 AD2d 860, 861 [2001]). Here, Family Court found thatextraordinary circumstances, consisting of persistent neglect and unfitness, were established asto the mother, but not as to the father.
Initially, we disagree with the mother that Family Court erred in finding extraordinarycircumstances as to her. The record is replete with evidence supporting the court's conclusionswith regard to the mother's unfitness and lack of credibility, including an indicated ChildProtective Services report of inadequate guardianship, her history of mental instability,disruptive behavior, and drug and alcohol abuse, her anger management issues, which includedanger with the child for what the mother conceded was normal three-year-old behavior, herfrequent use of profanity in the child's presence and in directly addressing the child, and herunstable lifestyle, which included leaving the child in petitioner's care to "go out and party anddrink and hang out at the bars" without providing contact information or medical authorizations.There was also evidence of the mother's frequent moves and job changes, and numerousshort-term romantic relationships to which the child was exposed, including one with a relativeand another that involved domestic violence. According the requisite "great deference" (Matter of Bevins v Witherbee, 20AD3d 718, 719 [2005]) to the court's factual findings and assessments of credibility, we findno error in its determination of extraordinary circumstances as to the mother or in its consequentfinding that granting sole custody to the father was in the child's best interests. We furtherdisagree with the mother that the visitation awarded to her was an abuse of the court's "broaddiscretion in determining an appropriate visitation schedule," in view of the evidence of herunfitness and unreliability and her frequent failures to exercise visitation and to comply withvisitation orders while the child was in petitioner's care (Matter of Daniel v Pylinski, 61 AD3d 1291, 1292 [2009]).
The mother further argues that Family Court improperly relied upon the closing argumentsubmitted by the Law Guardian because it contained recommendations and facts not in therecord and because, in the mother's view, it displayed "unjustified dislike" of her. The LawGuardian is an advocate and neither "an investigative arm of the court" (Weiglhofer v Weiglhofer, 1 AD3d786, 788 n [2003]) nor an "advisor[ ] to the court" (Matter of Devin XX., 20 AD3d 639, 641 [2005]). The LawGuardian therefore should not submit recommendations or [*3]reports containing facts not in evidence to the court (seeid.; Usack v Usack, 17 AD3d736, 738 n [2005]; Weiglhofer v Weiglhofer, 1 AD3d at 788 n). The Law Guardianmay, however, "make [his or her] position[ ] known to the court orally or in writing (by way of,among other methods, briefs or summations)" (Weiglhofer v Weiglhofer, 1 AD3d at 788n), but such submission should not include recommendations or information beyond the scope ofthe testimony (see Usack v Usack, 17 AD3d at 738 n).
Reading the submission as a whole, we find that Family Court properly accepted it as beingin the nature of a summation, as it was almost entirely based upon testimony given by witnessesduring the hearing. There is no indication that the court based any part of its determination on thefew statements and observations that were not in the testimony, nor did the court's ultimatedisposition closely correspond to the recommendations made by the Law Guardian. The LawGuardian's account of the interviews with the child and the parties was apparently provided toestablish her compliance with her obligations to consult with her client and to have a thoroughknowledge of her circumstances (seeMatter of Mark T. v Joyanna U., 64 AD3d 1092, 1093-1094 [2009]; 22 NYCRR 7.2 [d][1]), and provided a foundation for her conclusion that the three-year-old client could not advisethe attorney of her wishes as to placement, custody or visitation (see 22 NYCRR 7.2 [d][3]). The summation did not rise to the level of an "inappropriate practice[ ]" (Weiglhofer vWeiglhofer, 1 AD3d at 788 n).
Finally, as to the claim that the summation reflected dislike of the mother, the Law Guardianmust "zealously advocate the child's position" (22 NYCRR 7.2 [d]). After completing a properinquiry, "it is entirely appropriate, indeed expected" for the Law Guardian to take a position as toa proper custody disposition and to prefer one party over the other (Matter of Carballeira vShumway, 273 AD2d 753, 756 [2000], lv denied 95 NY2d 764 [2000]). There is noevidence that the Law Guardian improperly developed her position or reached conclusionsbefore the evidence was presented (see id.). Her "strong expression of her position. . . was not inconsistent with her proper role in these proceedings" (Matter of Pecore v Pecore, 34 AD3d1100, 1102 [2006]).
The father's contentions regarding the temporary joint custody provision are not reached asthe temporary award expired by its terms on May 31, 2009, and is thus moot.
Mercure, J.P., Lahtinen, Kane and McCarthy, JJ., concur. Ordered that the order is affirmed,without costs.