| Matter of Ramos v Ramos |
| 2010 NY Slip Op 06259 [75 AD3d 1008] |
| July 29, 2010 |
| Appellate Division, Third Department |
| In the Matter of Angel Ramos, Appellant, v Kelly Ramos et al.,Respondents. (Proceeding No. 1.) In the Matter of Kelly L. Ramos, Appellant, v AngelRamos et al., Respondents. (Proceeding No. 2.) |
—[*1] Allen E. Stone Jr., Vestal, for Kelly L. Ramos, respondent and appellant. Levene, Gouldin & Thompson, L.L.P., Binghamton (Terrance McGuiness of counsel), forJohn Wayman and another, respondents. Christopher Pogson, Binghamton, attorney for the children.
McCarthy, J. Appeals from an order of the Family Court of Broome County (Pines, J.),entered April 2, 2009, which dismissed petitioners' applications, in two proceedings pursuant toFamily Ct Act article 6, to modify a prior order of custody.
Angel Ramos (hereinafter the father) and Kelly L. Ramos (hereinafter the mother) are [*2]the married parents of two children (born in 2004 and 2006). Whenthey separated in 2006, the father agreed to an order awarding sole custody to the mother, subjectto his visitation on alternate weekends. In July 2007, the mother left the children with herparents, respondents John Wayman and Glenda Wayman (hereinafter the grandparents), in orderto temporarily relocate outside of Broome County as a result of financial difficulties and anongoing contentious relationship with the father. While the father continued to exercise hisvisitation in the mother's absence, the grandparents soon petitioned Family Court requesting thatthey share joint custody with the parents and be awarded physical custody.
In November 2007, upon the mother's consent—through counsel in herabsence—and the father's failure to appear, Family Court ordered that the mother and thegrandparents share joint custody, with physical custody to the grandparents and visitation to themother and the father as agreed upon by the parties. Only five days following the courtappearance that led to that consent order, the father commenced the first of the instantmodification proceedings against the mother and the grandmother seeking sole custody of thechildren. Shortly thereafter, the mother commenced a separate modification proceeding againstthe father and the grandparents requesting, among other things, sole custody. At the conclusionof a hearing, which was held on several days and spanned more than a year, the court dismissedthe parents' applications, finding an insufficient change in circumstances to warrantmodification. The mother and the father each appeal.
Family Court based its decision primarily upon the erroneous assumption that the November2007 consent order that placed custody of the children with the grandparents somehowestablished extraordinary circumstances. Significantly, the consent order was made without anyfinding or admission to the presence of extraordinary circumstances, and it is indeed settled lawthat before determining whether either parent had demonstrated or was required to demonstratethe requisite change in circumstances, the court in this proceeding was obligated toascertain—as a threshold matter—whether placement with a nonparent over aparent was warranted (see Matter ofMercado v Mercado, 64 AD3d 951, 952-953 [2009]; Matter of McArdle v McArdle, 1AD3d 822, 823 [2003]).
"[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 custodyover an extended period of time or other extraordinary circumstances" (Matter of Moseley vWhite, 74 AD3d 1424, 1425 [2010] [internal quotation marks and citations omitted];see Domestic Relations Law § 72 [2] [a], [b]; Matter of Bennett v Jeffreys,40 NY2d 543, 544 [1976]; Matter ofBrown v Zuzierla, 73 AD3d 765, 766 [2010]). "A finding of extraordinarycircumstances is rare, and the circumstances must be such that they 'drastically affect the welfareof the child' " (Matter of Jenny L.S. vNicole M., 39 AD3d 1215, 1215 [2007], lv denied 9 NY3d 801 [2007], quotingMatter of Bennett v Jeffreys, 40 NY2d at 549). Indeed, the nonparent bears the heavyburden of proving extraordinary circumstances (see Matter of Gardner v Gardner, 69 AD3d 1243, 1245 [2010]),and the "existence of a prior consent order of custody in favor of the nonparent is not sufficientto demonstrate extraordinary circumstances" (Matter of Mercado v Mercado, 64 AD3d at952; see Matter of Loukopoulos vLoukopoulos, 68 AD3d 1470, 1471 [2009]).
Having concluded that Family Court did not make the requisite threshold determinationregarding extraordinary circumstances, we are empowered to consider and make, if warranted,such a predicate finding based upon an adequately developed record (see Matter of Danzy v Jones-Moore,54 AD3d 858, 859 [2008]; compare Matter of Mercado v Mercado, 64 AD3d at 953;Matter of Moore v St. Onge, 307 AD2d 421, 422 [2003]). However, based upon ourreview [*3]of the fully developed record before us, we concludethat the grandparents did not establish extraordinary circumstances so as to deprive the parentsof the custody of their children.
In determining whether extraordinary circumstances exist, "factors to be considered include[but are not limited to] the length of time the child[ren have] lived with the nonparent, the qualityof that relationship and the length of time the biological parent allowed such custody to continuewithout trying to assume the primary parental role" (Matter of Bevins v Witherbee, 20 AD3d 718, 719 [2005]; see Matter of Cumber v O'Leary, 56AD3d 1067, 1069-1070 [2008]). Here, at the time the father's petition was filed, the childrenhad only been living with the grandparents for a few months, from July 2007 until earlyNovember 2007. The record reflects that, except when the father was precluded from doing so bya temporary order of protection, he regularly and consistently exercised visitation with thechildren—both following his separation from the mother and after the children beganresiding with the grandparents. In this regard, the father testified that he assumed that thechildren were living with their grandparents only on a temporary basis until the mother could getback on her feet. Although the father was aware that the grandparents subsequently filed forcustody, having appeared with them in Family Court on that matter on September 21, 2007, hesubsequently changed residence and never received notice of the conference that occurred onOctober 31, 2007, the date the consent order was agreed to in his absence.[FN1]Five days after the consent order was made—when he first learned that the grandparentsand the mother had been granted joint custody—the father filed for sole custody. Whilethe father should have informed the court of his change of address, such a misstep cannot beconsidered an abandonment of his children or any other kind of extraordinary circumstance,especially considering his prompt action after that court appearance.
As to the mother, she testified that when she asked the grandparents to take the children inJuly 2007, she was overwhelmed by financial difficulties and had just ended a difficultrelationship with the father. Her asserted understanding was that she was leaving the childrenwith them temporarily and that she would take the children back as soon as she stabilized herlife. Nothing in the record appears to contradict this assertion. When the grandparents petitionedfor custody, it was agreed that she would have joint custody with them and that both she and thefather would have such visitation with the children as the parties could agree. The resultingconsent order expressly reserved her rights as well. In view of the relatively short period of timethat elapsed between the date she left the children with the grandparents and the date she filedher petition for custody, any conclusion that the mother abandoned her children is not supportedby the record.[FN2]To the contrary, the record reflects that the mother, at a time of great stress in her [*4]life, acted responsibly in seeking out what was—at thetime—the best option for her children, i.e., placing them with her willing and capableparents (see Matter of Hyde v King,47 AD3d 813, 814-815 [2008]).
The record does not disclose any other extraordinary circumstances so as to support anaward of custody to the grandparents. By all accounts, the marriage between the mother and thefather was tumultuous, marked by allegations of domestic violence and intermittent periods ofseparation, all of which negatively impacted their parenting. They have now been separated forsome time and neither appears interested in reconciling. While each of them was the subject ofan indicated report for inadequate supervision (one after the father left their then six-month-oldson at home alone while he went to pick up the mother at a local hospital where she had been apatient, and the other after the mother returned with the children to the marital home while therewas a temporary order of protection against the father), neither parent has been adjudicated tohave committed any act of domestic violence or has been the subject of any abuse or neglectproceeding. None of the parents' shortcomings rises to the level of unfitness, persistent neglect orother rare circumstance sufficient to permit an award of custody to the grandparents, and whilethe grandparents may be capable of doing a "better job" of raising the children, that is not the test(see Matter of Bennett v Jeffreys, 40 NY2d at 548). On this record, there is an absence ofevidence that either parent—by action or inaction—behaved so badly as to haverelinquished his or her superior right to custody (see Matter of Brown v Zuzierla, 73AD3d at 766).
However, where, as here, each biological parent is seeking custody, "a finding that there areno extraordinary circumstances warranting a grant of custody to a nonparent does not end FamilyCourt's inquiry. Rather, under such circumstances, 'both parents [are] on an equal footing withthe identical burden of establishing that the child[ren]'s best interest[s] would be served byawarding . . . custody to him or her" (Matter of Murray v Parisella, 41 AD3d 902, 903 [2007], quotingMatter of Fletcher v Young, 281 AD2d 765, 767 [2001]). Accordingly, we reverseFamily Court's order, reinstate the parents' respective modification petitions and remit for a bestinterests hearing as between the parents (see Matter of Murray v Parisella, 41 AD3d at904; Matter of McDevitt v Stimpson, 281 AD2d 860, 862 [2001]; cf. Matter of Kargoe v Mitchell, 12AD3d 978, 980 [2004], lv dismissed 4 NY3d 794 [2005]). In the meantime, FamilyCourt may use its discretion to craft a suitable temporary transitional order until the parents canagree to an appropriate custody arrangement or the court makes such a determination after afact-finding hearing.
Spain, J.P., Lahtinen, Stein and Garry, JJ., concur. Ordered that the order is reversed, on thelaw, without costs, and matters remitted to the Family Court of Broome County for furtherproceedings not inconsistent with this Court's decision.
Footnote 1: In light of both parents' absence,the referee who presided at the conference stated that Family Court would likely sign an order ofjoint custody but reserve the right to each parent "to apply to the [c]ourt in the event they wish tochange something." Also, "they wouldn't need a huge change [of] circumstances [because] theyhaven't been here to consent to it." Thereafter, Family Court's order expressly "reserved" therights of both parents.
Footnote 2: Notably, an "extendeddisruption of custody" giving grandparents statutory standing to seek court-ordered custodyrights must generally last "at least twenty-four continuous months during which the parentvoluntarily relinquished care and control of the child and the child resided in the household ofthe . . . grandparent or grandparents" (Domestic Relations Law § 72 [2] [b];see Matter of Magana v Santos, 70AD3d 1208, 1209 [2010]). This clearly was not the case here.