| Matter of Burton v Barrett |
| 2013 NY Slip Op 02120 [104 AD3d 1084] |
| March 28, 2013 |
| Appellate Division, Third Department |
| In the Matter of Bryanne M. Burton, Respondent, vMatthew S. Barrett, Deceased, Respondent, and Susan Locke, Appellant. (ProceedingNo. 1.) In the Matter of Susan Locke, Appellant, v Bryanne M. Burton,Respondent. (Proceeding No. 2.) |
—[*1] Levene, Gouldin & Thompson, Binghamton (Terrence M. McGinness of counsel),for Bryanne M. Burton, respondent. Christopher A. Pogson, Binghamton, attorney for the child.
Peters, P.J.[*2] Appeal from an order of the FamilyCourt of Broome County (Pines, J.), entered November 29, 2011, which, among otherthings, granted petitioner's application, in proceeding No. 1 pursuant to Family Ct Actarticle 6, to modify a prior order of custody.
Bryanne M. Burton is the mother of a child born in 2006. Pursuant to a 2009 order,she and the child's father, Matthew S. Barrett, were awarded joint legal custody with thechild's primary residence to be with the father. The mother was granted access consistingof three weekends per month along with weekly three-hour visits. The child resided withher father at the home of Susan Locke, her paternal grandmother, until October 2010,when the father committed suicide. Shortly thereafter, the mother and grandmother eachpetitioned for custody of the child, and Family Court temporarily continued her primaryphysical residence with the grandmother. Following a fact-finding hearing, Family Courtdetermined that the grandmother had not demonstrated the existence of extraordinarycircumstances, granted the mother sole custody of the child and awarded thegrandmother visitation once per month from Friday after school until Saturday at 8:00p.m. The grandmother appeals.
It is well settled that "a biological parent has a claim of custody of his or her child,superior to that of all others, in the absence of surrender, abandonment, persistentneglect, unfitness, disruption of custody over an extended period of time or otherextraordinary circumstances" (Matter of Carpenter v Puglese, 94 AD3d 1367, 1368[2012] [internal quotation marks and citation omitted]; see Matter of Bennett vJeffreys, 40 NY2d 543, 549 [1976]; Matter of Aylward v Bailey, 91 AD3d 1135, 1135-1136[2012]). Factors to be considered in ascertaining whether extraordinary circumstancesexist include "the length of time the child has lived with the nonparent, the quality of thatrelationship and the length of time the biological parent allowed such custody to continuewithout trying to assume the primary parental role" (Matter of Bevins v Witherbee, 20 AD3d 718, 719 [2005];accord Matter of Golden vGolden, 91 AD3d 1042, 1043 [2012]; Matter of James NN. v Cortland County Dept. of Social Servs.,90 AD3d 1096, 1097-1098 [2011]). Mindful that courts are "powerless to supplantparents except for grievous cause or necessity" (Matter of Bennett v Jeffreys, 40NY2d at 546), the circumstances must be such that they "drastically affect the welfare ofthe child" (id. at 549; accord Matter of Ramos v Ramos, 75 AD3d 1008, 1010[2010]; see Matter of James NN. v Cortland County Dept. of Social Servs., 90AD3d at 1098). The burden of proof rests with the nonparent seeking custody (seeMatter of Golden v Golden, 91 AD3d at 1043).
Here, according the appropriate deference to Family Court's factual findings andcredibility determinations (seeMatter of Melody J. v Clinton County Dept. of Social Servs., 72 AD3d 1359,1360 [2010], lv denied 15 NY3d 703 [2010]; Matter of Magana v Santos, 70 AD3d 1208, 1209 [2010]),we find a sound and substantial basis for its determination that extraordinarycircumstances were not shown to warrant depriving the mother of custody. Although thechild resided with her father at the grandmother's home following the 2009 joint custodyorder, it was the father who served as the child's primary custodian, with the grandmotheraiding in caring for the child when the father was unable to do so. Throughout that time,the mother regularly and consistently exercised her visitation with the child and, uponlearning of the father's death, she immediately filed for sole custody. While the evidenceestablished that the mother has had a number of residences, lived at times with unsuitablecompanions and admittedly used alcohol and drugs in the past, she has not been thesubject of any abuse or neglect proceeding and, although her youth and lack of maturityled to lapses in parental judgment, it is equally clear that she has since matured and takenpositive steps to address and resolve those shortcomings (see Matter of Ramos vRamos, 75 AD3d at 1011-1012; Matter of Cortright v Workman, 304 AD2d[*3]862, 863 [2003]; Matter of Gray v Chambers,222 AD2d 753, 754 [1995], lv denied 87 NY2d 811 [1996]; Matter of Culverv Culver, 190 AD2d 960, 961 [1993]). With the grandmother having failed to proveextraordinary circumstances, a best interests assessment was not warranted (seeMatter of Bennett v Jeffreys, 40 NY2d at 548; Matter of Ferguson v Skelly, 80 AD3d 903, 906 [2011],lv denied 16 NY3d 710 [2011]; Matter of Campbell v Brewster, 9 AD3d 620, 622 [2004]).Thus, custody was properly awarded to the mother.
We do, however, agree with the grandmother's contention that Family Court shouldhave awarded her more frequent visitation. There being no dispute that she has standingto seek visitation (see Domestic Relations Law § 72 [1]; Matter of Varney v McKee, 44AD3d 1178, 1179 [2007]), the issue distills to whether Family Court properlyexercised its discretion in determining a visitation schedule that would be in the bestinterests of the child (see Matterof Terwilliger v Jubie, 84 AD3d 1520, 1521 [2011]; Matter of Johnson v Zides, 57AD3d 1318, 1319 [2008]). Here, while Family Court acknowledged that the childhad a longstanding relationship with the grandmother and stated in its decision that itwould award "regular visitation," it provided the grandmother with merely one 28-hourovernight period of visitation per month. Moreover, in so doing, the court failed to setforth the ultimate facts it considered in reaching its determination that it was in the bestinterests of the child to provide such limited contact between the child and the paternalgrandmother. This need not detain us, however, as our authority in custody matters is asbroad as that of Family Court and the record is sufficiently complete to allow us toperform a comprehensive best interests analysis (see Matter of Valenti v Valenti, 57 AD3d 1131, 1132[2008], lv denied 12 NY3d 703 [2009]; Matter of Cree v Terrance, 55 AD3d 964, 966 [2008],lv denied 11 NY3d 714 [2008]; Matter of Valentine v Valentine, 3 AD3d 646, 647 [2004]).
Although there is no set formula for determining a child's best interests, "[f]oremostin the inquiry is the nature and extent of the existing relationship between thegrandparent and child" (Matterof Stellone v Kelly, 45 AD3d 1202, 1204 [2007]; see Matter of Ziarno vZiarno, 285 AD2d 793, 794 [2001], lv denied 97 NY2d 605 [2001]). Otherfactors to be considered include the "basis and reasonableness of the parent's objections,the grandparent's nurturing skills and attitude toward the parent, the . . .assessment [of the attorney for the child] and the child's wishes" (Matter of Stellone vKelly, 45 AD3d at 1205).
As is crystal clear from the record, the grandmother has been a continuing presencein this child's young life. She has seen the child on at least a weekly basis from the timeof the child's birth in 2006 until physical custody was awarded to the father in 2009.During the following 2½ years when the child resided with her, she provided carewhen the father was unable to, brought the child to school everyday and attended themajority of her school and extracurricular activities. The record also reveals that the childhas had regular contact and formed strong bonds with her paternal cousins, several ofwhom are similar in age. While we certainly do not condone the grandmother's conductin failing to inform the mother of the father's death and enrolling the child in counselingwithout consulting the mother, the fact remains that she has had a history of extensivecontact with the child and has developed a strong and loving bond with her. Notably, themother stated during the hearing that she was not opposed to the court awarding thegrandmother visitation with the child and, in fact, recognized that visitation was in thechild's best interests. Moreover, the attorney for the child, citing the grandmother'slongstanding presence in the child's life and the bond between them, advocates for avisitation schedule that would provide for more frequent contact.[*4]
Upon our independent review of the record andconsidering the totality of the circumstances, we find that more regular contact with thegrandmother will serve the child's best interests. Therefore, commencing 30 days fromthe date of this Court's decision, the grandmother's visitation schedule will be as follows:the second weekend of every month from Friday at the close of school, or from 3:00 p.m.if school is not in session, until Sunday at 6:00 p.m.; the fourth weekend of every monthfrom 10:00 a.m. to 6:00 p.m. on Sunday; and at such other times as the parties maymutually agree. The grandmother shall be responsible for providing transportation to andfrom such visits.
Spain, Garry and Egan Jr., JJ., concur. Ordered that the order is modified, on the lawand facts, without costs, by reversing so much thereof as awarded Susan Locke visitationonce per month from Friday after school until Saturday at 8:00 p.m.; award Susan Lockevisitation as set forth in this Court's decision; and, as so modified, affirmed.