| Matter of Gardner v Gardner |
| 2010 NY Slip Op 00600 [69 AD3d 1243] |
| January 28, 2010 |
| Appellate Division, Third Department |
| In the Matter of Deborah Gardner, Respondent, v Leanne Gardneret al., Appellants. |
—[*1] Theodore J. Stein, Woodstock, for Shannen Brueckner, appellant. Valerie Wacks, Law Guardian, Olivebridge.
Mercure, J.P. Appeal from an order of the Family Court of Ulster County (Mizel, J.), enteredDecember 1, 2008, which granted petitioner's application, in a proceeding pursuant to Family CtAct article 6, for custody of respondents' child.
Petitioner is the maternal grandmother and respondents are the parents of a child born in1994. The child, who has historically spent a great deal of time at the grandmother's residence,moved in with the grandmother in June 2007. The grandmother thereafter filed a family offensepetition against respondent Leanne Gardner (hereinafter the mother) and commenced thisproceeding against the mother and respondent Shannen Brueckner (hereinafter the father)seeking custody of the child, basing her claims upon the child's exposure to the parents' violentarguments and the father's alcoholism.
Family Court issued temporary orders of protection against both parents at various pointsand, upon consent, awarded temporary custody to the grandmother. Several other petitions werealso filed, relating to alleged violations of the temporary orders or the father's [*2]ongoing disruptive conduct. As is relevant here, Family Courtdetermined after a hearing that extraordinary circumstances existed and that the best interests ofthe child would be served by a permanent award of custody to the grandmother. The parentsseparately appeal from the resulting custody order, and we affirm.[FN1]
Initially, the parents claim that Family Court improperly accepted proof predating the scopeof the custody petition. Family Court is afforded broad discretion in establishing the parametersof the proof at trial and, if necessary, may extend it to all relevant matters (see Matter ofMcGovern v McGovern, 58 AD3d 911, 913 [2009]; Matter of Tarrance v Mial, 22 AD3d 965, 966 [2005]; Matterof Stukes v Ryan, 289 AD2d 623, 624 [2001]). Here, the exceptionally broad allegations inthe custody petition put the parents on notice of the grandmother's claims that their poorbehavior had persisted "for [the child's] entire life." Moreover, there was no obvious point atwhich to limit the proof, such as the date of a prior custody order (see Matter of Bodrato vBiggs, 274 AD2d 694, 694-695 [2000]; cf. Matter of Palmer v Palmer, 284 AD2d612, 613-614 [2001]). As a result, we cannot say that Family Court abused its discretion inconsidering evidence of the parents' behavior throughout the child's life.
In this custody dispute between a nonparent and parents, the grandmother bore the initialburden of demonstrating the existence of extraordinary circumstances, such as parentalsurrender, abandonment, neglect, or unfitness, warranting an intrusion upon the parents' superiorright to custody (see Domestic Relations Law § 72 [2] [a]; Matter of Bennett vJeffreys, 40 NY2d 543, 546 [1976]; Matter of Mercado v Mercado, 64 AD3d 951, 952 [2009]). If, andonly if, that showing was made would Family Court then be permitted to consider whether thebest interests of the child would be served by awarding the grandmother custody (see Matter of VanDee v Bean, 66AD3d 1253, 1254-1255 [2009]; Matter of Mercado v Mercado, 64 AD3d at 952).
Here, the record reveals that the parents frequently argued, the arguments had grown worsein the period prior to the child moving in with the grandmother, and the child was often presentfor these arguments. The arguments escalated into violence on multiple occasions, including theparents shoving each other, repeated incidents where both the mother and the father ripped atelephone off the wall of the family residence, the mother's penchant for throwing items at thefather, and the mother threatening the father with a knife. Indeed, the mother admitted that she"black[ed] out" during arguments with the father and could not remember her actions afterwards.
Nor was the child spared from the parents' abusive behavior. For example, the mother arguedwith the child and proceeded to lock her out of the house and, upon her return, pulled her hair.On another occasion, the father grabbed the child during an argument and screamed at her [*3]to get off of his property.[FN2]Moreover, the father admittedly has a drinking problem that has intensified the strife, but he hasnot consistently attended counseling, and he checked himself out of a treatment program after hismost recent relapse. Nor is it disputed that the father had not yet begun court-ordered angermanagement classes at the time of the hearing and the parents had no interest in relationshipcounseling. According deference to Family Court's credibility determinations and findings offact (see Matter of VanDee v Bean, 66 AD3d at 1255), we agree with it that the hostileand violent atmosphere at the parents' residence, exacerbated by the father's inadequately treatedsubstance abuse, constituted extraordinary circumstances (see Matter of Green v Myers, 14 AD3d 805, 807 [2005];Matter of John KK. v Gerri KK., 302 AD2d 811, 813 [2003], lv denied 100NY2d 504 [2003]; Matter of Ciampa v Ciampa, 301 AD2d 876, 878-879 [2003]). FamilyCourt's further determination that the best interests of the child were served by granting thegrandmother custody is supported by a sound and substantial basis in the record and,accordingly, will not be disturbed.
Spain, Malone Jr., Stein and McCarthy, JJ., concur. Ordered that the order is affirmed,without costs.
Footnote 1: The father takes issue withFamily Court's determination that he had committed a family offense against the child. He didnot appeal from the dispositional order or order of protection issued in the family offenseproceeding, however, and his argument is not properly before us (see Family Ct Act§ 1113; Matter of Houck v Garraway, 293 AD2d 782, 783 n 2 [2002]).
Footnote 2: With regard to this and otherincidents, the parents claim that Family Court improperly considered the testimony of thegrandmother, who related what the child had told her about it. As the present custody proceedingwas based in part upon claims of abuse or neglect, however, the child's out-of-court statementsfell within an exception to the hearsay rule if sufficiently corroborated, which they undoubtedlywere here (see Family Ct Act § 1046 [a] [vi]; Matter of Cobane v Cobane, 57 AD3d 1320, 1321 [2008], lvdenied 12 NY3d 706 [2009]).