| Matter of Moseley v White |
| 2010 NY Slip Op 04680 [74 AD3d 1424] |
| June 3, 2010 |
| Appellate Division, Third Department |
| In the Matter of Melinda Anne Moseley et al., Respondents, vRebecca White, Appellant, and Robert White, Respondent. |
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Spain, J. Appeal from an order of the Family Court of Tompkins County (Sherman, J.),entered May 26, 2009, which, among other things, granted petitioners' application, in aproceeding pursuant to Family Ct Act article 6, for custody of the subject children.
Petitioners are the maternal grandparents of the children who are at the center of this appeal,a boy (born in 2001) and a girl (born in 2003). They obtained physical custody of the children inApril 2008 when their daughter, respondent Rebecca White (hereinafter the mother), asked themto come to Tennessee and retrieve the children after her arrest in connection with a domesticviolence incident in which respondent Robert White, the children's father (hereinafter the father),was the victim. The grandparents traveled to Tennessee, removed the children to their home inthe Town of Newfield, Tompkins County, enrolled them in school and commenced [*2]this proceeding seeking permanent legal custody. The father, whonow resides in Steuben County near the grandparents' home, ultimately consented to physicalcustody with the grandparents on the condition that no finding of extraordinary circumstances beentered against him in this matter, and that he be granted visitation with the children. Themother, who continues to reside in Tennessee, opposed the petition and cross-petitioned for solecustody.
After fact-finding and Lincoln hearings, Family Court found that extraordinarycircumstances justified an award of custody to a nonparent and that it was in the children's bestinterests to grant custody to the grandparents. The court also granted parental access to the fatheron alternate weekends and supervised access for the mother on alternate weekends. The mothernow appeals.
" 'It is fundamental that a biological parent has a claim of custody of his or her child,superior to that of all others, in the absence of surrender, abandonment, persistent neglect,unfitness, disruption of custody over an extended period of time or other extraordinarycircumstances' " (Matter of Green vMyers, 14 AD3d 805, 807 [2005], quoting Matter of Gray v Chambers, 222AD2d 753, 753 [1995], lv denied 87 NY2d 811 [1996]; see Matter of Bennett vJeffreys, 40 NY2d 543, 544 [1976]). After a careful review of the record, we affirm FamilyCourt's conclusion that extraordinary circumstances exist in this case to warrant consideration ofwhether it would be in the children's best interests to grant custody to the grandparents.
The evidence at the fact-finding hearing reveals that, during the lives of these youngchildren, the parents have separated and reconciled many times and repeatedly changedresidences due to job losses and evictions in several states. Proof was adduced that, while livingin Tennessee in the year prior to coming to live with the grandparents, the children failed toreceive basic medical care such as immunizations and dental care. The mother's disregard for thewell-being of her children was also established by her criminal history during this period. InOctober 2007, the mother and two other women were arrested for larceny after employing herfour-year-old daughter and another young child to conceal merchandise in their attempt to stealthe items from a store. The mother pleaded guilty, was given probation and ordered to payrestitution. She was also charged with aggravated assault after she attacked the father with aknife. During the same incident, she wrapped a telephone cord around her neck and attempted tocommit suicide, whereupon the father sent their six-year-old son to a neighbor's house to call911. The record further reveals that the mother has gotten into physical altercations with otheradults and has had suicidal thoughts prior to this attempt, but never sought nor received anyongoing psychiatric treatment. Following the attack on the father, the mother again receivedprobation and was ordered to complete anger management classes. Significantly, the recorddemonstrates that the children remember the mother wielding a knife against the father, andbeing scared and upset.
Following the second arrest, the father and mother again separated and, facing eviction, themother called upon the grandparents to come and retrieve the children. At that point, she signeda notarized statement granting the grandparents physical custody until she was able to provideand care for them, permission to obtain medical care and permission to enroll them in school inNew York. It is undisputed that, at that time, the grandparents expected the mother to eventuallyjoin the children in New York. Instead, the mother chose to remain in Tennessee where she isliving with a man serving criminal probation who has a history of substance abuse.[*3]
Since the children moved to New York, the mother callsthem less than once a week and has not visited except when she came to New York for thefact-finding hearing. When the mother expressed an interest in visiting the children duringChristmas 2008, the grandparents offered to pay half of her plane fare. However, the motherrefused and never came to visit, explaining at the hearing that since the plane ticket was all shewanted for Christmas, it was unfair of her parents not to offer to pay for the entire ticket. Recordevidence also reflects that the mother did not send gifts or cards for the children on theirbirthdays or at Christmas. Given the instances of neglect, domestic violence, emotionalinstability and financial insecurity leading up to her decision to transfer physical custody of thechildren to the grandparents, and the lack of evidence, despite her completion of angermanagement classes, that the mother has matured to a point of placing her children's interestsabove her own, we conclude that Family Court's finding of extraordinary circumstances has asound and substantial basis in the record (see Matter of Gardner v Gardner, 69 AD3d 1243, 1245-1246[2010]; Matter of VanDee v Bean,66 AD3d 1253, 1255 [2009]; Matter of Jodoin v Billings, 44 AD3d 1244, 1245 [2007];Matter of Green v Myers, 14 AD3d at 807).
Having concluded that extraordinary circumstances exist, the disposition of custody iscontrolled by what is in the best interests of the children (see Matter of Bennett vJeffreys, 40 NY2d at 544; Matter ofMercado v Mercado, 64 AD3d 951, 952 [2009]; Matter of Green v Myers, 14AD3d at 807). Here, the grandparents have been providing a stable, loving environment for thechildren. Both grandparents work in the local educational system, the grandfather as a teacherand the grandmother as an assistant to a middle school principal. They have provided a fosterhome to many children over the years and adopted five children, including the mother. Currently,in addition to their two grandchildren, five of their children reside with them. Although thechildren clearly miss their mother and the son experienced significant behavioral problemsthroughout first grade, the grandparents are providing a nurturing, supportive environment andgetting him the counseling he requires. Indeed, there is a striking contrast between the careprovided by the grandparents, which furthers the children's best interests, and the unstable, evenviolent, existence they have known most of their young lives. Accordingly, the record fullywarrants the grant of custody to the grandparents (see Matter of Turner v Maiden, 70 AD3d 1214, 1216-1217 [2010];Matter of Jodoin v Billings, 44 AD3d at 1245; Matter of Green v Myers, 14AD3d at 807; see also Matter of Perry v Perry, 194 AD2d 837, 837 [1993]).
Mercure, J.P., Lahtinen, Malone Jr. and Kavanagh, JJ., concur. Ordered that the order isaffirmed, without costs.