| Matter of Drake v Carroll |
| 2010 NY Slip Op 04584 [73 AD3d 1172] |
| May 25, 2010 |
| Appellate Division, Second Department |
| In the Matter of Cathy Drake, Respondent, v CharonCarroll, Appellant. |
—[*1] Mark Brandys, New York, N.Y., for respondent. Karen P. Simmons, Brooklyn, N.Y. (Barbara H. Dildine and Janet Neustaetter of counsel),attorney for the children.
In a child custody proceeding pursuant to Family Court Act article 6, the father appeals, aslimited by his brief, from so much of an order of the Family Court, Kings County (Feldman,J.H.O.), dated December 11, 2008, as, after a hearing, granted the maternal aunt's petition tomodify an order of the same court (Silber, J.) dated March 17, 2004, awarding him sole custodyof the subject children, and awarded the maternal aunt sole custody of the children.
Ordered that the order dated December 11, 2008, is affirmed insofar as appealed from,without costs or disbursements.
As between a parent and a nonparent, a parent has the superior right to custody that cannotbe denied unless the nonparent establishes that the parent relinquished that right due to thesurrender, abandonment, persistent neglect, unfitness, or other like extraordinary circumstances(see Matter of Bennett v Jeffreys, 40 NY2d 543, 549-550 [1976]; Matter of Jiminez vJiminez, 57 AD3d 781 [2008]; Matter of K.F.T. v D.P.G., 54 AD3d 1044 [2008];Matter of Dungee v Simmons, 307 AD2d 312, 312-313 [2003]; see also Matter ofCourtney B., 47 AD3d 808 [2008]). The burden is on the nonparent to prove the existence ofextraordinary circumstances (see Matter of Darlene T., 28 NY2d 391, 394 [1971];Matter of K.F.T. v D.P.G., 54 AD3d 1044 [2008]), and "[a]bsent proof of suchextraordinary circumstances, an inquiry into the best interests of the child is not triggered"(Matter of Jiminez v Jiminez, 57 AD3d 781 [2008]; see Matter of Nadia Kay R.,125 AD2d 674, 678 [1986]). Inasmuch as the Family Court is in the best position to evaluate thetestimony, credibility, character, temperament, and sincerity of the parties, its findings areentitled to great weight and should not be set aside where they have a sound and substantial basisin the record (see Matter of Miller v Shaw, 51 AD3d 927 [2008]; Matter of Garcia vPerez, 48 AD3d 812, 813 [2008]; Matter of Fishburne v Teelucksingh, 34 AD3d804, 805 [2006]; Matter of Cambridge v Cambridge, 13 AD3d 443, 444 [2004];Matter of Rudy v Mazzetti, 5 AD3d 777, 778 [2004]).
The Family Court properly determined that the petitioner, a maternal aunt who has had [*2]physical custody of the subject children for an extended period oftime since their mother's death, sustained her burden of demonstrating extraordinarycircumstances in this case (see Matter of Holmes v Glover, 68 AD3d 868 [2009]).Moreover, the Family Court's determination that an award of custody to the petitioner would bein the best interests of the subject children is supported by a sound and substantial basis in therecord, and we discern no basis to disturb it (see Matter of Bennett v Jeffreys, 40 NY2d543 [1976]).
The father's remaining contentions are without merit. Dillon, J.P., Santucci, Hall and Lott,JJ., concur.