| Matter of Revis v Marzan |
| 2012 NY Slip Op 08132 [100 AD3d 1004] |
| November 28, 2012 |
| Appellate Division, Second Department |
| In the Matter of Jessica L. Revis, Respondent, v SusanMarzan et al., Appellants. |
—[*1] Richard J. Burke, Jr., Poughkeepsie, N.Y., for respondent. Theoni Stamos-Salotto, Hopewell Junction, N.Y., attorney for the child.
In a child custody proceeding pursuant to Family Court Act article 6, the maternal aunt andmaternal uncle appeal from an order of the Family Court, Dutchess County (Guzman, Ct. Atty.Ref.), dated January 30, 2012, which, after a hearing, granted the mother's petition to modify anorder of the same court (Forman, J.) dated October 9, 2009, entered upon the consent of theparties, awarding guardianship of the subject child to them, so as to award the mother solecustody of the child.
Ordered that the order dated January 30, 2012, is affirmed, without costs or disbursements.
" 'As between a parent and a nonparent, the parent has the superior right to custody thatcannot be denied unless the nonparent establishes that the parent has relinquished the right due tosurrender, abandonment, persistent neglect, unfitness, or other similar extraordinarycircumstances' " (Matter of Barcellos vWarren-Kidd, 57 AD3d 984, 984-985 [2008], quoting Matter of Danzy v Jones-Moore, 54AD3d 858 [2008]). "The burden of proof is on the nonparent to prove such extraordinarycircumstances" (Matter of Rudy vMazzetti, 5 AD3d 777, 778 [2004]), and "[a]bsent proof of such extraordinarycircumstances, an inquiry into the best interests of the child is not triggered" (Matter of Jiminez v Jiminez, 57 AD3d781, 781 [2008]; see Matter ofKrieger v Krieger, 65 AD3d 1352, 1353 [2009]). Here, the Family Court properlydetermined that the appellants, the subject child's maternal aunt and maternal uncle, failed todemonstrate the existence of extraordinary circumstances to warrant the continuation of theirguardianship of the subject child (see Matter of Jiminez v Jiminez, 57 AD3d at 781; Matter of Tolbert v Scott, 42 AD3d548 [2007]). Where, as here, "the separation between the natural parent and child is not inany way attributable to a lack of interest or concern for the parental role, that separation does notamount to an extraordinary circumstance" (Matter of Male Infant L., 61 NY2d 420, 429[1984]).
Accordingly, the Family Court properly granted the mother's petition to modify the orderdated October 9, 2009, awarding guardianship of the child to the appellants, so as to award her[*2]sole custody of the child. Florio, J.P., Leventhal, Austin andRoman, JJ., concur.