| Matter of Herrera v Vallejo |
| 2013 NY Slip Op 04003 [107 AD3d 714] |
| June 5, 2013 |
| Appellate Division, Second Department |
| In the Matter of Judith Herrera,Respondent, v Chris Vallejo, Appellant. |
—[*1] Glenn Gucciardo, Northport, N.Y., for respondent. Robert C. Mitchell, Riverhead, N.Y. (John B. Belmonte of counsel), attorney for thechild.
In a child custody proceeding pursuant to Family Court Act article 6, the motherappeals, as limited by her brief, from so much of an order of the Family Court, SuffolkCounty (Loguercio, J.), dated February 28, 2012, as granted the petition of the nonparentfor sole custody of the subject child.
Ordered that the order is affirmed insofar as appealed from, without costs ordisbursements.
In a child custody dispute between a parent and a nonparent, the parent has a superiorright to custody that cannot be denied unless the nonparent establishes that the parent hasrelinquished that right due to surrender, abandonment, persistent neglect, unfitness, orother extraordinary circumstances (see Matter of Bennett v Jeffreys, 40 NY2d543, 548 [1976]; Matter ofNorth v Yeagley, 96 AD3d 949, 950 [2012]; Matter of Flores v Flores, 91 AD3d 869, 870 [2012]; Matter of Ruiz v Travis, 84AD3d 1242 [2011]; Matterof Souza v Bennett, 81 AD3d 836 [2011]; Matter of LaBorde v Pennington, 60 AD3d 950, 951[2009]; Matter of Silverman vWagschal, 35 AD3d 747, 748 [2006]; Matter of Dellolio v Tracy, 35 AD3d 737, 737-738 [2006];Matter of Campo vChapman, 24 AD3d 439 [2005]). Only if the nonparent meets this burden doesthe court determine whether the best interests of the child warrant awarding custody tothe nonparent (see Matter of Bennett v Jeffreys, 40 NY2d at 548; Matter of Revis v Marzan, 100AD3d 1004 [2012]; Matter of North v Yeagley, 96 AD3d at 950; Matter of Jumper v Hemphill,75 AD3d 507 [2010]; Matter of Wilson v Smith, 24 AD3d 562 [2005]; Matterof Campo v Chapman, 24 AD3d at 440).
Contrary to the mother's contention, the Family Court properly determined that thenonparent petitioner sustained her burden of demonstrating the existence of extraordinarycircumstances. The evidence before the Family Court, which included prior neglectfindings against the mother arising from her abuse of alcohol, and testimony regardingthe highly unstable and unsafe living situation the mother created for the child throughher abuse of alcohol and her acts of domestic violence towards the child, demonstratedthe existence of extraordinary circumstances (see Matter [*2]of Rodriguez vDelacruz-Swan, 100 AD3d 1286 [2012]; Matter of Robinson v McNair, 90 AD3d 759, 760 [2011]).Moreover, the Family Court's determination that an award of custody to the nonparentpetitioner would be in the best interests of the subject child is supported by a sound andsubstantial basis in the record (see Eschbach v Eschbach, 56 NY2d 167, 172-173[1982]; Matter of Andrews vMouzon, 80 AD3d 761 [2011]; Matter of Barcellos v Warren-Kidd, 57 AD3d 984 [2008]).Angiolillo, J.P., Hall, Roman and Hinds-Radix, JJ., concur.