| Matter of Robinson v McNair |
| 2011 NY Slip Op 09131 [90 AD3d 759] |
| December 13, 2011 |
| Appellate Division, Second Department |
| In the Matter of Natalie Robinson, Respondent, v AyeshaMcNair, Appellant, and Leonard Robinson, Respondent. (Proceeding No. 1.) In the Matter ofAyesha McNair, Appellant, v Natalie Robinson, Respondent. (Proceeding No. 2.) (And a RelatedProceeding.) |
—[*1] Karen P. Simmons, Brooklyn, N.Y. (Barbara H. Dildine of counsel), Attorney for theChildren.
In related child custody and visitation proceedings pursuant to Family Court Act article 6, themother appeals from an order of the Family Court, Kings County (Krauss, J.), dated July 20,2010, which, after a hearing, granted the petition of the subject children's aunt, Natalie Robinson,for sole custody of the children and denied the mother's petitions for custody and visitation.
Ordered that the order is affirmed, without costs or disbursements.
From the time of their respective births, the subject children, who were born in February1997, and April 1998, resided in the house of their paternal aunt, Natalie Robinson (hereinafterRobinson), with their mother, who was their primary caregiver. At some point thereafter, themother and the children moved out of Robinson's house. Since 2003, however, the children,without their mother, have continuously lived with Robinson. In March 2006, Robinson filed apetition in Family Court seeking custody of both children, and she was awarded temporarycustody on July 31, 2006. Thereafter, the mother filed petitions for custody and visitation. After alengthy hearing, the Family Court granted Robinson's petition for sole custody of the childrenand denied the mother's petitions. We affirm.
"As between a parent and a nonparent, the parent has the superior right to custody that cannotbe denied unless the nonparent establishes that the parent has relinquished that right due tosurrender, abandonment, persistent neglect, unfitness, or similar extraordinary circumstances"(Matter of Gilchrest v Patterson, 55AD3d 833, 833 [2008]; see Matter of Bennett v Jeffreys, 40 NY2d 543, 548 [1976];Matter of Brown v Zuzierla, 73AD3d 765 [2010]). Accordingly, a nonparent who seeks custody of [*2]a child against the wishes of the child's parent has the initial burdenof establishing that "extraordinary circumstances" exist (Matter of Ruiz v Travis, 84 AD3d 1242, 1242 [2011]; see Matter of Fishburne vTeelucksingh, 34 AD3d 804 [2006]; Matter of General v General, 31 AD3d 551, 552 [2006]).
Here, Robinson satisfied her burden of establishing extraordinary circumstances based on,inter alia, her having amply provided for the children's physical, emotional, and financial needsfor an extended period of time, the mother's use of excessive corporal punishment to disciplinethe children, the harmful psychological and emotional effects of such punishment on thechildren, the mother's poor impulse control, and the mother's failure to contribute to thechildren's financial support (see Matterof Ruiz v Travis, 84 AD3d 1242 [2011]; Matter of Wright v Wright, 81 AD3d 740 [2011]; Matter of Jumper v Hemphill, 75AD3d 507 [2010]; Matter of Drakev Carroll, 73 AD3d 1172 [2010]; Matter of Barcellos v Warren-Kidd, 57 AD3d 984 [2008]; cf. Matter of Garcia v Ramos, 79 AD3d872, 873 [2010]). In addition, both children expressed their wishes to continue their presentliving situation without any contact from the mother, including supervised contact (see Matter of Mera v Rodriguez, 73AD3d 1069, 1070 [2010]; Matter ofSamuel S. v Dayawathie R., 63 AD3d 746, 747 [2009]; Matter of O'Connor v Dyer, 18 AD3d757, 757-758 [2005]; Matter of Kocowicz v Kocowicz, 306 AD2d 285, 285-286[2003]).
Further, the Family Court properly determined that the children thrived in Robinson's careand that their best interests would be served by awarding custody to her, which was supported bya sound and substantial basis in the record (see Matter of Wright v Wright, 81 AD3d at741; Matter of Jumper v Hemphill, 75 AD3d at 508; Matter of Drake v Carroll, 73 AD3d 1172 [2010]; Matter ofSamuel S. v Dayawathie R., 63 AD3d at 747; Matter of Barcellos v Warren-Kidd, 57 AD3d 984 [2008]), and wasconsistent with the position of the Attorney for the Children and the recommendation of theforensic evaluator (see Matter ofCockrell v Burke, 50 AD3d 895 [2008]; Matter of Donohue v Donohue, 44 AD3d 1042 [2007]).
"[A] noncustodial parent should have reasonable rights of visitation, and the denial of thoserights to a natural parent is a drastic remedy which should only be invoked when there issubstantial evidence that visitation would be detrimental to the child" (Matter of Mera vRodriguez, 73 AD3d at 1069 [internal quotation marks omitted]). The determination ofvisitation is entrusted to the sound discretion of the trial court and should not be disturbed onappeal unless the determination lacks a substantial evidentiary basis in the record (see Matter of Ciccone v Ciccone, 74AD3d 1337, 1338 [2010]; Matter of Mera v Rodriguez, 73 AD3d at 1070; Matterof Barcellos v Warren-Kidd, 57 AD3d at 985; Matter of Kachelhofer v Wasiak, 10 AD3d 366 [2004]).
The Family Court's determination that granting the mother even supervised visitation at thistime would be contrary to the children's best interests was supported by a sound and substantialbasis in the record (see Matter ofMcLean v Simpson, 82 AD3d 1101, 1102 [2011]; Matter of Mera v Rodriguez,73 AD3d at 1070; Matter of Samuel S. vDayawathie R., 63 AD3d 746, 747 [2009]). Dillon, J.P., Eng, Lott and Austin, JJ.,concur.