| Matter of North v Yeagley |
| 2012 NY Slip Op 05006 [96 AD3d 949] |
| June 20, 2012 |
| Appellate Division, Second Department |
| In the Matter of Jo Lynette North, Respondent, v ChristinaYeagley, Appellant, et al., Respondents. |
—[*1] Sally S. Benvie, Goshen, N.Y., for petitioner-respondent. Ariana Antonelli, New Windsor, N.Y., attorney for the children.
In related child custody proceedings pursuant to Family Court Act article 6, the motherappeals from (1) an order of the Family Court, Orange County (Currier-Woods, J.), datedNovember 5, 2010, which, after a hearing, inter alia, awarded custody of the subject children tothe paternal grandmother, and (2) an order of the same court dated December 10, 2010, whichdenied her motion to vacate the order dated November 5, 2010, and to reopen the hearing.
Ordered that the orders are affirmed, without costs or disbursements.
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 other like extraordinary circumstances(see Matter of Bennett v Jeffreys, 40 NY2d 543, 548 [1976]). Where extraordinarycircumstances are present, the court must then consider the best interests of the child in awardingcustody (id. at 548).
Contrary to the mother's contention, the Family Court properly determined that the paternalgrandmother sustained her burden of demonstrating extraordinary circumstances. The FamilyCourt, which properly considered related decisions in certain neglect proceedings against themother (see Family Ct Act § 651 [e] [3] [i]; Matter of Lane v Lane, 68 AD3d 995, 997 [2009]), was presentedwith evidence showing, among other things, that the mother had a highly unstable and unsafeliving situation and failed to address the special needs of the subject children (see Matter of Brault v Smugorzewski,68 AD3d 1819 [2009]; Matter ofDonohue v Donohue, 44 AD3d 1042, 1043 [2007]). Moreover, the Family Court'sdetermination that an award of custody to the paternal grandmother would be in the best interestsof the subject children is supported by a sound and substantial basis in the record (see Matterof Donohue v Donohue, 44 AD3d at 1043).
The mother and the attorney for the children contend that the Family Court improperlyadmitted into evidence a report from a forensic evaluator. However, since there was a sound andsubstantial basis for the Family Court's custody determination without consideration of [*2]the report, any error was harmless (see Matter of Tercjak v Tercjak, 49AD3d 772, 772-773 [2008]; Matterof D'Esposito v Kepler, 14 AD3d 509, 510 [2005]).
The remaining contentions of the mother and the attorney for the children either have beenrendered academic in light of our determination, are not properly before this Court, or arewithout merit. Skelos, J.P., Florio, Lott and Miller, JJ., concur.