| Matter of Wayman v Ramos |
| 2011 NY Slip Op 07560 [88 AD3d 1237] |
| October 27, 2011 |
| Appellate Division, Third Department |
| In the Matter of John Wayman et al., Appellants, v KellyRamos, Respondent, et al., Respondent. (And Three Other RelatedProceedings.) |
—[*1] Mitch Kessler, Cohoes, for Kelly Ramos, respondent. Christopher A. Pogson, Binghamton, attorney for the children.
Peters, J.P. Appeal from an order of the Family Court of Broome County (Pines, J.), enteredOctober 5, 2010, which, among other things, dismissed petitioners' application, in a proceedingpursuant to Family Ct Act article 6, to modify a prior order of custody.
Respondent Kelly Ramos (hereinafter the mother) and respondent Angel Ramos (hereinafterthe father) are the parents of two children (born in 2004 and 2006). In July 2007, the mother, whowas awarded custody of the children following the parties' separation, left the children withpetitioners (hereinafter the grandparents) while she attempted to stabilize her life. In November2007, upon the mother's consent and the father's failure to appear, joint legal custody of thechildren was awarded to the grandparents and the mother, with primary physical custody to thegrandparents. Shortly thereafter, the mother and father each filed petitions seeking sole custodyof the children. In an April 2009 order, Family Court dismissed the parents' petitions on theground that a sufficient change in circumstances to warrant a modification had [*2]not been established. On appeal, we reversed that order andreinstated the petitions, finding that Family Court failed to make a threshold determinationregarding the existence of extraordinary circumstances so as to warrant an award of custody to anonparent and that, on the record then before us, no such extraordinary circumstances existed (Matter of Ramos v Ramos, 75 AD3d1008 [2010]). We then remitted the matter to Family Court for a best interests hearing asbetween the parents (id.).
After the matter was remitted to Family Court, the children continued to reside with thegrandparents. In September 2010, the grandparents commenced proceedings seeking sole custodyor, in the alternative, visitation with the children based upon allegations that, among other things,the mother and father had only sporadic contact with the children over the 18 months sinceFamily Court's April 2009 order. The mother, who had moved to Florida in April 2009, filed ananswer denying the grandparents' allegations and seeking sole custody of the children. FamilyCourt dismissed the grandparents' custody petition without a hearing, concluding that the factsalleged, even if proven, would not constitute extraordinary circumstances.[FN*] The grandparents now appeal.
Initially, we disagree with the mother's assertion that the instant appeal has been renderedmoot. While this appeal was pending, the parties appeared before Family Court concerning theparents' reinstated custody petitions and the grandparents' visitation petition. After the parentsstipulated to a custody arrangement amongst themselves, the parties proceeded to address theissue of the grandparents' visitation and ultimately agreed to a visitation schedule in favor of thegrandparents. Family Court thereafter entered an order, based on the agreement of the parents and"upon the stipulation of the parties," awarding the parents joint custody of the children andgranting the grandparents visitation. This order, as it relates to the grandparents, dealt only withtheir right to visitation and nothing in the transcript of the proceeding before Family Courtestablishes that, in stipulating to certain periods of visitation, the grandparents relinquished theirright to continue to pursue this custody appeal. Under these circumstances, we do not find thisappeal to be moot (see Matter of Siler vWright, 64 AD3d 926, 927-928 [2009]; Matter of Deuel v Dalton, 33 AD3d 1158, 1159 [2006]; Matterof Chittick v Farver, 279 AD2d 673, 675 [2001]; compare Matter of Espinosa vHernandez, 265 AD2d 755, 756-757 [1999]; Matter of Ballard v Parker, 232 AD2d740, 741 [1996]).
Turning to the merits, we agree with the grandparents and the attorney for the children thatFamily Court erred in dismissing the grandparents' custody petition without conducting anevidentiary hearing. "[I]n a custody dispute between a parent and a nonparent, the parent's claimis superior in the absence of surrender, abandonment, persistent neglect, unfitness, disruption ofcustody over an extended period of time or other extraordinary circumstances" (Matter of Turner v Maiden, 70 AD3d1214, 1215 [2010] [internal quotation marks and citations omitted]; see Matter of Kowalsky v Converse, 79AD3d 1310, 1311 [2010]; Matter ofLori MM. v Amanda NN., 75 AD3d 774, 775 [2010]). Although "the mere existence ofa prior consent order of custody in favor of the nonparent is not sufficient to demonstrateextraordinary circumstances" (Matter ofMercado v Mercado, 64 AD3d 951, 952 [2009]; see Matter of Ramos v Ramos,75 AD3d at 1010), "[e]vidence that the parent has failed either to maintain substantial, repeatedand continuous contact with a child or to plan for the child's future has been found to constitute[*3]persistent neglect sufficient to rise to the level of anextraordinary circumstance" (Matter ofFerguson v Skelly, 80 AD3d 903, 905 [2011], lv denied 16 NY3d 710 [2011];see Matter of Arlene Y. v WarrenCounty Dept. of Social Servs., 76 AD3d 720, 721 [2010], lv denied 15 NY3d713 [2010]; see also Matter of Bohigianv Johnson, 48 AD3d 904, 905 [2008]). Generally, an evidentiary hearing must beconducted unless the party seeking custody " 'fails to make a sufficient evidentiary showing towarrant a hearing or no hearing is requested and the court has sufficient information to undertakea comprehensive independent review of the [children's] best interests' " (Matter of Christopher B. v Patricia B.,75 AD3d 871, 872 [2010], quoting Matter of Chittick v Farver, 279 AD2d at 675; accord Matter of Twiss v Brennan, 82AD3d 1533, 1534 [2011]).
In their September 2010 petitions, the grandparents alleged that the children had lived withthem for over 38 months and that, in the 18 months since Family Court's prior order, the motherand father have abdicated their parental rights and responsibilities. More specifically, thegrandparents asserted that the mother moved to Florida in April 2009 and, since that time, shehas only visited with the children once. The petitions further alleged that the mother has rarelyspoken with the children on the telephone and has not provided the grandparents with an addressor telephone number where she can be reached. With respect to the father, the grandparentsclaimed that he is unable to maintain steady employment and has failed to establish a stableresidence, having moved at least five times since March 2009. They also stated that he has hadonly sporadic contact with the children since that time, and that he has had no contact with thechildren since July 2010. Liberally construing these allegations (see Matter of Twiss vBrennan, 82 AD3d at 1535; Matter of Williams v Mullineaux, 271 AD2d 869, 870[2000]), and considering that the children have resided with the grandparents for most of theiryoung lives, we find that the grandparents set forth sufficient facts which, if established, couldsupport a finding of extraordinary circumstances (see People ex rel. Secor v Acosta, 46 AD3d 927, 928 [2007]; cf. Matter of Ortiz v Winig, 82 AD3d1520, 1521 [2011]; see generally Matter of Bohigian v Johnson, 48 AD3d at905-906; Matter of Bevins vWitherbee, 20 AD3d 718, 719-720 [2005]). As such, the matter must be remitted toFamily Court for a hearing to determine whether extraordinary circumstances exist and, if so,whether it is in the children's best interests for the grandparents to maintain custody.
Rose, Lahtinen, McCarthy and Garry, JJ., concur. Ordered that the order is modified, on thelaw, without costs, by reversing so much thereof as dismissed petitioners' application for custodyof the children; matter remitted to the Family Court of Broome County for further proceedingsnot inconsistent with this Court's decision; and, as so modified, affirmed.
Footnote *: Family Court permitted thegrandparents' visitation petition to go forward.