| Matter of Turner v Maiden |
| 2010 NY Slip Op 01398 [70 AD3d 1214] |
| February 18, 2010 |
| Appellate Division, Third Department |
| In the Matter of David A. Turner, Appellant, v Alberta Maiden,Respondent, et al., Respondent. (And Another Related Proceeding.) |
—[*1] John D. Cadore, Binghamton, for Alberta Maiden, respondent. Edward T. Waples, Law Guardian, Binghamton.
Stein, J. Appeal from an order of the Family Court of Broome County (Pines, J.), enteredDecember 3, 2008, which partially granted petitioner's application, in two proceedings pursuantto Family Ct Act article 6, to modify a prior order of custody.
Petitioner (hereinafter the father) and respondent Shanika N. Maiden (hereinafter themother) are the parents of a daughter (born in 2002). At the time of the child's birth, the motherwas 19 and still living at home with her mother, respondent Alberta Maiden (hereinafter thegrandmother). With the exception of a two-month period, the child has resided at the home of thegrandmother since her birth. As a result of a domestic violence incident in December2004—during which the mother stabbed the father with a knife—the father and themother were both [*2]incarcerated[FN1]and, in January 2005, the grandmother was awarded temporary custody of the child. Thereafter,pursuant to a consent order dated June 2005, the grandmother was awarded sole custody of thechild, with visitation to the father.
In April 2008, the father commenced the first of these proceedings to obtain sole custody ofthe child alleging, among other things, that his increased participation in the child's lifeconstituted a change of circumstances. The grandmother then commenced the second of theseproceedings, seeking to retain sole custody of the child, with visitation to the father. Afterholding hearings, including a Lincoln hearing, Family Court determined thatextraordinary circumstances existed for the grandmother to seek custody of the child and that itwas in the child's best interests for the grandmother to retain primary physical custody. The courtawarded joint legal custody of the child to the father, the mother and the grandmother, anddirected that the child's primary residence remain with the grandmother, and that the father havefrequent visitation. The father now appeals and we affirm.
It is well settled that "[i]n a custody dispute between a parent and a nonparent, the parent'sclaim is superior 'in the absence of surrender, abandonment, persistent neglect, unfitness,disruption of custody over an extended period of time or other extraordinary circumstances' " (Matter of VanDee v Bean, 66 AD3d1253, 1254 [2009], quoting Matter of Gray v Chambers, 222 AD2d 753, 753 [1995],lv denied 87 NY2d 811 [1996]; see Matter of Fynn S., 56 AD3d 959, 961 [2008]). It is thenonparent's burden to prove extraordinary circumstances (see Matter of Mercado v Mercado, 64 AD3d 951, 952 [2009]).Factors to be considered in determining whether extraordinary circumstances exist includedomestic violence (see Matter of Greenv Myers, 14 AD3d 805, 807 [2005]), as well as "the length of time the child has livedwith the nonparent, the quality of that relationship and the length of time the biological parentallowed such custody to continue without trying to assume the primary parental role" (Matter of Bevins v Witherbee, 20AD3d 718, 719 [2005]; see Matterof Coonradt v Aussicker, 66 AD3d 1143, 1144 [2009]; Matter of Campbell v Brewster, 9AD3d 620, 621-622 [2004]). "Once extraordinary circumstances have been established, thecontrolling consideration in determining custody is the best interest of the child" (Matter of Bennor v Hewson, 47 AD3d1136, 1137 [2008] [citations omitted], lv denied 10 NY3d 710 [2008]; see Matter of Jodoin v Billings, 44AD3d 1244, 1245 [2007]).
Here, the undisputed evidence established that the child has lived at the grandmother'sresidence for most of her life and has remained in her custody with the consent of the mother andthe father until the filing of the father's petition. The grandmother presented evidence that shelives in a clean, well-kept three-bedroom apartment that is "full of love" and that the childappears to be "very happy." The grandmother does not work and is able to care for the child fulltime, while the mother works the overnight shift and helps care for the child when she is notworking. Although the child had attendance problems in her kindergarten year, the grandmothertestified that the child had not been tardy during her first-grade year and the parties agreed thatthe child was doing well in school.
There was also evidence that the father has lived in five different residences since 2005.[*3]The father is unemployed and lives on disability retirementincome that he receives based upon his prior military service. He testified that he no longer takesmedication for mental health issues.[FN2]The record also contains evidence that the father is verbally abusive and often yells at thegrandmother and at the child. The father acknowledged that he had argued with the grandmotherand the mother in front of the child and the mother testified that the father had argued with hislive-in girlfriend in the child's presence.
The father presented evidence that he has been involved in the child's life and that they havea good relationship. The father testified that, until these proceedings were commenced, he wasregularly picking the child up from school and was spending a substantial amount of time withher. The testimony also established that, unlike the grandmother and the mother, the fatherregularly attended the child's school functions, including parent-teacher conferences, during thechild's kindergarten year.Although the father testified that the child spent an entire summer and almost every weekendwith him, the grandmother refuted this and testified that, when the child spent the weekendaway, she spent most of her time with the paternal grandmother, not with the father.
According great deference to Family Court's findings and credibility determinations (see Matter of Bronson v Bronson, 63AD3d 1205, 1206 [2009]; Matterof Bohigian v Johnson, 48 AD3d 904, 905 [2008])—including its determinationthat the father's testimony was incredible in many respects—there is a sound andsubstantial basis in the record to support the court's finding of extraordinary circumstances andits consequent finding that it was in the child's best interests to remain in the grandmother'sprimary care. The father's prior consent to the grandmother's sole custody of the child, the factthat the child had resided with the grandmother in a stable environment for most of her life and isapparently thriving there and the father's failure to maintain a stable residence and ongoingproblems with domestic violence sufficiently demonstrate extraordinary circumstances (seeMatter of Coonradt v Aussicker, 66 AD3d at 1144; Matter of Fynn S., 56 AD3d at961-962; Matter of Bohigian v Johnson, 48 AD3d at 905-906; Matter of Green vMyers, 14 AD3d at 807). Likewise, although the record reflects that none of the parties iswithout shortcomings, the father has been an involved parent and he has a close relationship withthe child, the totality of the evidence also supports the court's best interests determination (see Matter of Ronald I. v James J., 53AD3d 706, 708 [2008]). There was no evidence that the grandmother was not willing towork with the father to allow him liberal visitation and to foster his relationship with the child.In addition, we are mindful that the Law Guardian supported the grandmother's petition. Thus,we find no basis in the record to disturb Family Court's findings (see Matter of Bohigian vJohnson, 48 AD3d at 905).
Mercure, J.P., Spain, Malone Jr. and Garry, JJ., concur. Ordered that the order is affirmed,without costs.
Footnote 1: As a result of that incident, themother pleaded guilty to assault in the second degree; charges against the father were dropped.
Footnote 2: Such issues apparently include adiagnosis of posttraumatic stress disorder.