| Matter of Ruiz v Travis |
| 2011 NY Slip Op 04472 [84 AD3d 1242] |
| May 24, 2011 |
| Appellate Division, Second Department |
| In the Matter of Colleen Ruiz, Appellant, v CharlotteTravis et al., Respondents. |
—[*1] Steven N. Ranellone, White Plains, N.Y., for respondent Charlotte Travis. Daniel L. Pagano, Yorktown Heights, N.Y., Attorney for the Child.
In a custody and visitation proceeding pursuant to Family Court Act article 6, the motherappeals, as limited by her brief, from so much of an order of the Family Court, WestchesterCounty (Edlitz, J.), entered February 17, 2010, as, upon a hearing on the issue of extraordinarycircumstances, after which it was found that the paternal grandmother established the existenceof extraordinary circumstances, and, upon a hearing on the issues of the best interests of thesubject child and change of circumstances, in effect, granted the motion of the paternalgrandmother, the father, and the Attorney for the Child, made at the close of the mother's case, todismiss the mother's petition to modify an order of the same court dated February 25, 2008,entered upon the consent of the parties, inter alia, awarding the grandmother and the mother jointlegal custody of the subject child with sole physical custody to the grandmother, so as to awardthe mother sole physical and legal custody of the child, and dismissed the petition.
Ordered that the order is modified, on the law, (1) by deleting the provision thereof, in effect,granting the motion of the paternal grandmother, the father, and the Attorney for the Child, madeat the close of the mother's case, to dismiss the mother's petition, and substituting therefor aprovision denying the motion, and (2) by deleting the provision dismissing the petition; as somodified, the order is affirmed insofar as appealed from, without costs or disbursements, themother's petition is reinstated, and the matter is remitted to the Family Court, WestchesterCounty, for further proceedings consistent herewith.
In a custody proceeding between a parent and a nonparent, "the parent has the superior rightto custody that cannot be denied unless the nonparent establishes that the parent has relinquishedthat right due to surrender, abandonment, persisting neglect, unfitness, or other like extraordinarycircumstances" (Matter of Souza v Bennett, 81 AD3d 836, 836 [2011] [internal quotationmarks omitted], quoting Matter of Fishburne v Teelucksingh, 34 AD3d 804, 804 [2006];see Matter of Bennett v Jeffreys, 40 NY2d 543, 544 [1976]). The nonparent has theburden of establishing the existence of extraordinary circumstances "even when there is a priororder awarding custody of a child to [the] nonparent which was issued on the consent of theparties" (Matter of Wright v Wright, 81 AD3d 740, 740 [2011]; see Matter ofFishburne v Teelucksingh, 34 AD3d 804 [2006]).
Contrary to the mother's contention, the Family Court's finding, after a hearing, that thepaternal grandmother demonstrated the existence of extraordinary circumstances has a sound andsubstantial basis in the record (see Domestic Relations Law § 72 [2] [b]; Matterof Wright v Wright, 81 AD3d 740 [2011]; Matter of Gilchrest v Patterson, 55 AD3d833 [2008]; Matter of Carton v Grimm, 51 AD3d [*2]1111, 1113 [2008]). As the paternal grandmother demonstrated thatshe had supported and cared for the child since the child's birth, without significant contributionfrom the mother during the first two years of the child's life, the paternal grandmother establishedan " 'extended disruption of custody' " during which the mother "voluntarily relinquished careand control of the child" (Domestic Relations Law § 72 [2] [b]; see Matter of Wright vWright, 81 AD3d 740 [2011]; Matter of Gilchrest v Patterson, 55 AD3d 833 [2008]).
However, the Family Court erred by, in effect, granting the motion of the paternalgrandmother, the father, and the Attorney for the Child, made at the close of the mother's case ata separate hearing on the issues of the best interests of the child and change of circumstances, todismiss the mother's petition to modify the custody order dated February 25, 2008. Contrary tothe Family Court's conclusion, the mother's evidence adequately demonstrated a change ofcircumstances which might warrant modification of custody in the best interests of the child. Inparticular, the mother made a showing that she had maintained sobriety for a prolonged period,that she had obtained full-time employment, that she had been active in obtaining certain medicaltreatment for the child and had attended the child's medical appointments and meetings at schoolwhen advised of them, and that the child had developed a bond with her and with her otherdaughter, of whom the mother had custody. In light of this evidence, the Family Court erred indismissing the mother's petition at the close of the mother's case. Accordingly, the matter must beremitted to the Family Court, Westchester County, for a continued hearing as to whether achange in circumstances exists which requires a modification of custody to ensure the continuedbest interests of the child (cf. Matter of David WW. v Laureen QQ., 42 AD3d 685, 686[2007]; Matter of Ortiz v Ortiz, 6 AD3d 619 [2004]; see generally Eschbach vEschbach, 56 NY2d 167, 171 [1982]). Skelos, J.P., Dickerson, Hall and Sgroi, JJ., concur.