| Matter of Loukopoulos v Loukopoulos |
| 2009 NY Slip Op 09566 [68 AD3d 1470] |
| December 24, 2009 |
| Appellate Division, Third Department |
| In the Matter of Leslie J. Loukopoulos et al.,Respondents, v Kathryne J. Loukopoulos, Appellant. |
—[*1] Paul R. Corradini, Elmira, for respondents. Paul Sartori, Law Guardian, Elmira.
Kavanagh, J. Appeal from an order of the Family Court of Chemung County (Brockway, J.),entered October 15, 2008, which granted petitioners' application, in a proceeding pursuant toFamily Ct Act article 6, to modify a prior order of custody.
Respondent (hereinafter the mother) has twins, a son—who is the subject of thisproceeding—and daughter (born in 1995).[FN1]In 1999, when the children were almost four years old, the mother moved from Chicago, Illinoisto the City of Elmira, Chemung County so that petitioners—the mother's brother and hiswife—could help her care for her children. The mother was diagnosed with bipolardisorder, which caused her to be hospitalized for significant periods of time during whichpetitioners cared for her children. Some five years later, the mother moved back to Chicago withher children. In August 2006, she was arrested for possession of illegal drugs and, during herresulting incarceration and subsequent hospitalization, the children were returned to petitionersin Elmira and, upon the mother's consent, Family Court issued an order granting them temporarycustody.[*2]
In the fall of 2006, the mother moved back to Elmira andthe parties entered into a stipulation that was subsequently incorporated into a Family Courtorder that placed custody of the children with the mother, but awarded visitation to petitioners.Initially, the mother resided with her children in petitioners' home until January 2007, when shesecured her own residence where she remained with the children until they completed the schoolyear. Before the 2007-2008 school year began, the mother moved to Chicago, but agreed that theson could stay with petitioners in Elmira, attend school and then return to live with her thefollowing summer. In mid-November 2007, the mother traveled from Chicago to visit with theson, when she announced that she was taking him to live with her in Chicago. This promptedpetitioners, on November 15, 2007, to bring, by order to show cause, this petition seekingcustody of the child, including a request for temporary custody. Family Court denied theapplication for temporary custody, but directed that the son not be removed from his school orrelocated from the county.[FN2]Four days later, the mother showed up at the local police department with the son explaining thatshe was homeless and had no place to go. The son's Law Guardian was contacted and, as aresult, filed an application to award temporary custody of the son to petitioners. Family Court,without a hearing, granted petitioners temporary custody of the son and, after conductingfact-finding and Lincoln hearings, granted petitioners' application for custody. Themother now appeals.
Initially, Family Court's order granting temporary custody of the son to petitioners wassuperceded by the final custody order. Therefore, the mother's challenge to the temporary orderis moot (see Posporelis v Posporelis, 41 AD3d 986, 988 [2007]; Matter of Pecore vPecore, 34 AD3d 1100, 1102 [2006]).
As for Family Court's decision awarding petitioners custody, it is well settled that abiological parent has a superior right to custody over the rights of a nonparent and "[t]he [s]tatemay not deprive a parent of the custody of a child absent surrender, abandonment, persistingneglect, unfitness or other like extraordinary circumstances" (Matter of Bennett vJeffreys, 40 NY2d 543, 544 [1976]; see Matter of Mercado v Mercado, 64 AD3d951, 952 [2009]; Matter of Bennor v Hewson, 47 AD3d 1136, 1137 [2008], lvdenied 10 NY3d 710 [2008]; Matter of Marx v Tucker, 36 AD3d 1125, 1126[2007]). The burden of proving the existence of extraordinary circumstances rests with thenonparent (see Matter of Linda D. v Renee D., 40 AD3d 1201, 1202 [2007]; Matterof Foster v Foster, 34 AD3d 1102, 1103 [2006]), and is not established simply because thebiological parent has previously consented to the entry of an order granting custody to thenonparent (see Matter of Moore v St. Onge, 307 AD2d 421, 422 [2003]). In addition,only after Family Court is satisfied that extraordinary circumstances do indeed exist may itconduct a best interests analysis regarding the child's custodial arrangements (see Matter ofVanDee v Bean, 66 AD3d 1253 [2009]; Matter of Leighton v Bazan, 36 AD3d 1178,1179 [2007]).
Family Court's conclusion that extraordinary circumstances did exist, which justifiedremoving the son from the mother's custody, enjoys ample support in the record. The mother, byall accounts, continues to struggle with her mental illness and, as a result, has often been unableto provide proper care for her child. She does not consistently take her prescribed medications,[*3]with the result that she is often vulnerable to episodesinvolving manic outbreaks and depression. Her conduct is often bizarre and erratic and hasresulted in numerous hospitalizations, which required the child to be placed withpetitioners.[FN3]When not hospitalized, the mother, despite her best efforts, has not been able to consistentlyprovide a suitable living environment for the son and her home was described as being in anunsanitary condition. In addition, his educational needs have not been met while in the mother'scare, especially during a period of time when she attempted to educate him at home as opposedto having him attend a traditional school. These conditions, and the impact that they have had onthe child, constitute extraordinary circumstances that justified Family Court's inquiry intowhether the son's best interests would be served by awarding custody to petitioners (seeMatter of Coonradt v Aussicker, 66 AD3d 1143, 1144 [2009]).
Family Court, in concluding that the son's interests would best be served by awardingcustody to petitioners, took into account all of the relevant factors needed to be considered insuch an analysis (see Matter of Bennett v Jeffreys, 40 NY2d at 544; Matter ofCumber v O'Leary, 56 AD3d 1067, 1070 [2008]; Matter of Ronald I. v James J., 53AD3d 706, 708 [2008]; Matter of Bohigian v Johnson, 48 AD3d 904, 906 [2008]). Itinquired into the need to provide a stable environment for the child, his wishes, the homeenvironment provided by the mother and petitioners, their respective histories with the child,their ability to provide for his well-being and their willingness to foster a positive relationshipbetween the child and the other party (see Matter of Ronald I. v James J., 53 AD3d at708). While residing with petitioners will necessarily involve a period of separation from thechild's biological sister, the fact is that he has thrived while in their care and has developed astrong familial bond with their children. Petitioners have attended to all of the son's medical andeducational needs, and his teachers have noted a marked improvement in his behavior, attitudeand physical appearance since he has been in petitioners' care. The stark contrast in theenvironment that existed in petitioners' home, as opposed to that which existed when the sonresided with the mother, provides sufficient justification for Family Court's final conclusion thathis best interests would be served by being placed in petitioners' custody.
The mother's remaining claims have been considered and found to be without merit
Cardona, P.J., Lahtinen, McCarthy and Garry, JJ., concur. Ordered that the order is affirmed,without costs.
Footnote 1: The mother also has an adultdaughter (born in 1986).
Footnote 2: The mother filed a cross petitionalleging that petitioners violated the prior custody order, which was dismissed after she defaultedin that proceeding.
Footnote 3: In one instance, the mother washospitalized after pouring kerosene over large areas inside her home.