| Matter of Brown v Zuzierla |
| 2010 NY Slip Op 03922 [73 AD3d 765] |
| May 4, 2010 |
| Appellate Division, Second Department |
| In the Matter of Frank A. Brown, Jr., Appellant, v JaneZuzierla, Respondent. Stavroula Raia, Nonparty Respondent. (Proceeding No. 1.) In the Matterof Stavroula Raia, Respondent, v Jane Zuzierla, Respondent. Frank A. Brown, Jr., NonpartyAppellant. (Proceeding No. 2.) In the Matter of Stavroula Raia, Respondent, v Frank A. Brown,Jr., Appellant. (Proceeding No. 3.) |
—[*1] Robert D. Gallo, Sayville, N.Y., attorney for the child.
In related child custody proceedings pursuant to Family Court Act article 6, the fatherappeals from three orders of the Family Court, Suffolk County (Hoffman, J.), all datedSeptember 19, 2008, which, after a hearing, granted the maternal grandmother's petitions forcustody of the subject child and denied his petition for custody.
Ordered that the orders are reversed, on the law, without costs or disbursements, thematernal grandmother's petitions for custody are denied, the father's petition for custody isgranted with the consented-to condition that he shall not be under the influence of alcohol orillegal drugs, and the matter is remitted to the Family Court, Suffolk County, for a hearing todetermine the respective visitation rights of the mother and maternal grandmother.
"As between a parent and a nonparent, the parent has the superior right to custody thatcannot be denied unless the nonparent establishes that the parent has relinquished that right dueto surrender, abandonment, persistent neglect, unfitness, or other like extraordinarycircumstances" (Matter of Wilson vSmith, 24 AD3d 562, 563 [2005]; see Matter of Bennett v Jeffreys, 40 NY2d543, 548 [1976]; Matter of Barcellos vWarren-Kidd, 57 AD3d 984, 984-985 [2008]; Matter of Hyde v King, 47 AD3d 813 [2008]; Matter [*2]of Bermeo v Rios, 33 AD3d 613 [2006]; Matter ofDungee v Simmons, 307 AD2d 312, 312-313 [2003]). For a third-party nonparent to gaincustody of a child, he or she must first prove that extraordinary circumstances exist such that aparent has relinquished his or her superior right to custody (see Matter of Linda J. v Nakisha P., 10 AD3d 287 [2004]; Matter of Tristram K., 25 AD3d222, 226 [2005]). Absent a finding of extraordinary circumstances, a determination of whatis in the best interests of the child is not triggered (see Matter of Bennett v Jeffreys, 40NY2d at 549; Matter of Barcellos v Warren-Kid, 57 AD3d at 985).
While we accord great deference on appeal to the factfinder's opportunity to view thewitnesses, hear the testimony, and observe demeanor (cf. People v Mateo, 2 NY3d 383,410 [2004], cert denied 542 US 946 [2004]; People v Bleakley, 69 NY3d 490,495), "in custody matters, this Court's authority is as broad as that of the hearing court"(Matter of Hyde v King, 47 AD3d at 814; see Matter of Louise E.S. v W. StephenS., 64 NY2d 946, 947 [1985]; Matter of Esposito v Shannon, 32 AD3d 471, 474 [2006]). Areview of the evidence reveals that the maternal grandmother failed to demonstrate the existenceof extraordinary circumstances (see Domestic Relations Law § 72 [2] [b]; Matter of Jamison v Chase, 43 AD3d467, 468 [2007]). Thus, the Family Court erred in granting the maternal grandmother'spetitions for custody based upon its determination that doing so was in the subject child's bestinterests. Accordingly, the orders must be reversed and custody awarded to the father, with theconsented-to condition that he shall not be under the influence of alcohol or illegal drugs, and weremit the matter to the Family Court, Suffolk County, for a hearing to determine the respectivevisitation rights of the mother and maternal grandmother. Mastro, J.P., Santucci, Belen andChambers, JJ., concur.