| Matter of Aylward v Bailey |
| 2012 NY Slip Op 00264 [91 AD3d 1135] |
| Jnury 19, 2012 |
| Appellate Division, Third Department |
| In the Matter of Irene E. Aylward, Petitioner, v Shiree A. Bailey,Respondent, and Ryan A. Ming, Appellant. |
—[*1] Norbert A. Higgins, Binghamton, for Shiree A. Bailey, respondent. Carman M. Garufi, Binghamton, attorney for the children.
Malone Jr., J. Appeal from an order of the Family Court of Broome County (Connerton, J.),entered October 13, 2010, which granted petitioner's application, in a proceeding pursuant toFamily Ct Act article 6, for custody of the subject children.
Respondent Shiree A. Bailey (hereinafter the mother) and respondent Ryan A. Ming(hereinafter the father) are the parents of three children (born in 2000, 2003 and 2006). Themother and the father ended their relationship in February 2008 and various custody proceedingsensued, whereby the father and the mother each sought custody. While the litigation waspending, in November 2009, the father apparently left the children with the mother and had nocontact with them for one month. In January 2010, apparently unaware of the father's conductand in light of the mother's failure to appear for a hearing, Family Court awarded the fathercustody of the children, with visitation to the mother. The father then resumed custody of thechildren and the mother commenced a proceeding seeking custody based upon the father's prior[*2]relinquishment of custody. In April 2010, the father againrelinquished custody of the children to the mother and both he and the mother filed petitionsseeking to modify the January 2010 order such that primary physical custody would be with themother. However, the following month the mother was arrested and charged with criminal sale ofa controlled substance and, at that time, the father withdrew his petition and resumed custody ofthe children.
Subsequently, petitioner, the children's maternal grandmother (hereinafter the grandmother),commenced a proceeding seeking custody of the children and, in August 2010, Family Courtissued an order granting her temporary custody of them. Following hearings on the grandmother'spetition, which also encompassed the mother's modification petition, by separate orders FamilyCourt dismissed the mother's petition and, finding that the grandmother had establishedextraordinary circumstances, awarded custody to the grandmother. The father appeals from theorder granting custody to the grandmother.
"[I]ntervention by the [s]tate in the right and responsibility of a natural parent to custody ofher or his child is warranted if there is first a judicial finding of surrender, abandonment,unfitness, persistent neglect, unfortunate or involuntary extended disruption of custody, or otherequivalent but rare extraordinary circumstance which would drastically affect the welfare of thechild" (Matter of Bennett v Jeffreys, 40 NY2d 543, 549 [1976]). The burden ofestablishing that such circumstances exists is on the nonparent seeking custody of the child (see Matter of Daphne OO. v FrederickQQ., 88 AD3d 1167, 1168 [2011]). Typically, extraordinary circumstances will befound to exist if the nonparent proves that the parents engaged in "gross misconduct or otherbehavior evincing an utter indifference and irresponsibility" (Matter of Gray v Chambers,222 AD2d 753, 754 [1995], lv denied 87 NY2d 811 [1996]). Here, Family Court foundthat extraordinary circumstances existed because the mother had an untreated substance abuseproblem and pending criminal charges, the father had "twice left the [c]hildren with the [m]otherfor extended periods of time without contacting" them, had destroyed the grandmother'smotorcycle, and engaged in domestic violence toward the mother, and the father's significantother had behaved inappropriately and used foul language in the children's presence.
"While we accord great deference on appeal to the factfinder's opportunity to view thewitnesses, hear the testimony, and observe demeanor, in custody matters, this Court's authority isas broad as that of the hearing court" (Matter of Brown v Zuzierla, 73 AD3d 765, 766 [2010] [internalquotation marks and citations omitted]). On this record, we do not agree with Family Court thatextraordinary circumstances exist so as to award custody of the children to the grandmother. Byall accounts, the relationship between the mother and the father has not been stable and therehave been periods of separation, as well as allegations of domestic violence on the part of bothparties. However, neither parent has been adjudicated to have committed any act of domesticviolence and the children have never been subjects of any abuse or neglect proceedings. Whilethe father did twice leave the children with the mother, his uncontroverted testimony establishedthat the first time he left them—for one month—he left town to care for hisgrandmother. Both the mother and the father testified that the second time he leftthem—for approximately three weeks—he did so pursuant to an informalnegotiation with the mother. Once the mother was arrested, the father immediately retrieved thechildren and subsequently contested the grandmother's petition for custody. While the recordreveals that each parent has shortcomings, none "rises to the level of unfitness, persistent neglector other rare circumstance sufficient to permit an award of custody to the grand[mother]" (Matter of Ramos v Ramos, 75 AD3d1008, 1012 [2010]). While it appears on this record that the grandmother might "do a 'betterjob' of raising the child[ren]," a court cannot divest a parent of his or her right to custody [*3]of the children on that basis (Matter of Bennett v Jeffreys,40 NY2d at 548; see Matter of Ramos v Ramos, 75 AD3d at 1012; Matter of Stark vKinnaw, 212 AD2d 943, 944 [1995]). Accordingly, the order must be reversed and custodyawarded to the father.
In light of the foregoing, we need not address the father's remaining contentions.
Spain, J.P., Stein, McCarthy and Egan Jr., JJ., concur. Ordered that the order is reversed, onthe law, without costs, custody of the children awarded to respondent Ryan A. Ming, and matterremitted to the Family Court of Broome County for further proceedings not inconsistent with thisCourt's decision.