| Matter of Holmes v Glover |
| 2009 NY Slip Op 09228 [68 AD3d 868] |
| December 8, 2009 |
| Appellate Division, Second Department |
| In the Matter of Robin Holmes, Respondent, v RobertGlover, Jr., Appellant, et al., Respondents. |
—[*1] John Ray, Miller Place, N.Y., for petitioner-respondent. Arza Feldman, Uniondale, N.Y., attorney for the child.
In a child custody proceeding pursuant to Family Court Act article 6, the father appeals froman order of the Family Court, Suffolk County (Tarantino, Jr., J.), dated June 23, 2008, which,upon an order of the same court dated January 23, 2008, granting the petitioner's motion forpartial summary judgment on the issue of "extraordinary circumstances," and after a hearing onthe issue of the child's best interests, granted that branch of the petition which was to modify ajudgment of the Circuit Court for Hillsborough County, Florida, dated June 3, 2002, inter alia,awarding him sole custody of the subject child, so as to award the petitioner sole custody of thechild, limited his contact with the child to written and e-mail correspondence, and directed thatthe testimony taken at the hearing could be used in any abandonment proceeding associated withthe adoption of the child by the petitioner.
Ordered that the order dated June 23, 2008, is modified, on the law, by deleting the provisionthereof directing that the testimony taken at the hearing could be used in any abandonmentproceeding associated with the adoption of the child by the petitioner; as so modified, the orderdated June 23, 2008, 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 that right due tosurrender, abandonment, persistent neglect, unfitness, or other like extraordinary circumstances(see Matter of Bennett v Jeffreys, 40 NY2d 543, 548 [1976]; Matter of Dungee vSimmons, 307 AD2d 312, 312-313 [2003]). Such "extraordinary circumstances" may existwhere there has been an "unfortunate or involuntary disruption of custody over an extendedperiod of time" (Matter of Bennett v Jeffreys, 40 NY2d at 546). The burden of proof ison the nonparent to prove such extraordinary circumstances (see Matter of Darlene T.,28 NY2d 391, 394 [1971]). Absent a finding of extraordinary circumstances, a determination ofwhat is in the best interests of the child is not triggered (see Matter of Nadia Kay R., 125AD2d 674, 678 [1986]).[*2]
Here, the petitioner sustained her burden ofdemonstrating, prima facie, the existence of extraordinary circumstances. The father voluntarilygave the child to the petitioner pursuant to powers of attorney dated March 2002 and August2002, respectively, and with the father's acquiescence, the petitioner took the child to live withher in New York while the father resided in Florida. Prior to the commencement of thisproceeding in November 2006, the father only visited with the child once, communicatedsporadically with the child, primarily by e-mail, and gave no financial or other support to thechild's caretaker. In opposition, the father failed to raise a triable issue of fact (see Alvarez vProspect Hosp., 68 NY2d 320 [1986]). Accordingly, the Family Court properly granted thepetitioner's motion for partial summary judgment on the issue of "extraordinary circumstances."
Furthermore, the child was 2½ years old when she began living with the petitioner andthus resided with the petitioner and the petitioner's family for most of her life. Over the past sixyears, the petitioner has given the child a home and provided for all of the child's needs, such asher medical care, schooling, religious upbringing, and extracurricular activities. In contrast, sincegiving the child to the petitioner, the father has demonstrated neither the willingness nor theability to parent her. Under these circumstances, as it cannot be said that the court's custody andvisitation determinations lack a sound and substantial basis in the record, we decline to disturbthem (see Matter of Wispe vLeandry, 63 AD3d 853 [2009]; Matter of Bradley v Wright, 260 AD2d 477[1999]). Further, the Family Court's denial of the father's application for an adjournment of thebest interests hearing based upon the father's vague and unsubstantiated claims that he waschronically ill and unable to travel from Florida to New York was a provident exercise ofdiscretion (see Tun v Aw, 10 AD3d651 [2004]; Matter of Kagno v Kagno, 296 AD2d 410 [2002]).
However, the court's ruling that the minutes of the custody proceeding could be used "in anyabandonment proceeding associated with the adoption of this child by the Petitioner," wasimproper, since the adoption proceeding was not before the court at the time of the custodyhearing, and the father received no prior notice that the court would be considering adoptionissues. The admissibility of those minutes in an abandonment hearing associated with adoption isbest determined during the adoption proceeding by the court presiding over that proceeding, afterdetermining the availability of witnesses and granting the father and/or his attorney anopportunity to be heard (see Matter of Raymond J., 224 AD2d 337 [1996]).
The father's remaining contention is without merit. Covello, J.P., Santucci, Chambers andLott, JJ., concur.