Aida B. v. Alfredo C.

• Decision Date: 20 February 2014
• Citation: 2014 N.Y. Slip Op. 01224,980 N.Y.S.2d 601,114 A.D.3d 1046
• Parties: In the Matter of AIDA B., Respondent, v. ALFREDO C., Appellant, et al., Respondent.
• Court: New York Supreme Court — Appellate Division

114 A.D.3d 1046

980 N.Y.S.2d 601

2014 N.Y. Slip Op. 01224

In the Matter of AIDA B., Respondent,

v.ALFREDO C., Appellant, et al., Respondent.

Supreme Court, Appellate Division, Third Department, New York.

Feb. 20, 2014.

Leah W. Casey, Schenectady, for appellant.

Aaron A. Louridas, Delmar, for Aida B., respondent.

Karen R. Crandall, Schenectady, attorney for the children.

Before: PETERS, P.J., LAHTINEN, STEIN and EGAN JR., JJ.

LAHTINEN, J.

Appeal from two orders of the Family Court of Schenectady County (Taub, J.H.O.), entered August 15, 2012 and August 28, 2012, which, among other things, granted petitioner's application, in a proceeding pursuant to Family Ct. Act article 6, for custody of respondents' children.

Respondent Alfredo C. (hereinafter the father) and respondent Gwendolyn E. (hereinafter the mother) are the parents of three children, Chassity (born in 2006), Niaire (born in 2007) and Margarita (born in 2009), who are the subjects of this proceeding. After the couple separated, the mother took physical custody of the children and an order was entered on consent in July 2010, permitting the father parenting time every Saturday between 10:00 a.m. and 4:00 p.m. Shortly thereafter, in September 2010, the Schenectady County Department of Social Services (hereinafter DSS) commenced a neglect proceeding against the mother, and Family Court (Powers, J.) issued an order the next day temporarily removing the children from the home and placing them in the custody of DSS. In January 2011, Family Court issued a modified order, placing the children with petitioner, their paternal grandmother. Thereafter, in August 2011, Family Court issued an order finding the children to be neglected, placing the children under the care of DSS for one year and committing them to the care of petitioner.

Petitioner commenced this proceeding in March 2012, seeking custody of the children. Following several conferences, the court commenced a trial on July 31, 2012 at which DSS was present, petitioner and the mother appeared with counsel and the father was represented by counsel, but did not appear. The parties informed Family Court (Taub, J.H.O.) that they had reached an agreement that the parties would share joint legal custody of the children with primary physical custody and final decision-making authority residing with petitioner and, as relevant here, the father would have visitation on Saturdays and Sundays from 12:00 p.m. to 6:00 p.m. However, petitioner objected to the father's proposed visitation and the court then commenced the hearing, after which it proclaimed that the father had “defaulted,” and ordered joint legal custody to petitioner, the father and the mother with primary physical custody to petitioner. Furthermore, the court directed parenting time for the father at the times and places mutually agreeable to petitioner and him, subject to conditions set by petitioner with respect to supervision. The court's decision was reduced to a written order and a superceding order in August 2012 from which the father now appeals.

We modify. As a threshold matter, we find unpersuasive the father's argument that Family Court abused its discretionby directing the trial scheduled for July 31, 2012 to begin in his absence. A full evidentiary hearing was conducted, the father was competently represented by counsel, who indicated that she would proceed without him, and the court rendered its decision on the merits ( see Matter of Rosalyn YY. v. Otsego County Dept. of Social Servs., 101 A.D.3d 1401, 1403, 956 N.Y.S.2d 322 [2012];Matter of Corey UU. [Donna UU.], 85 A.D.3d 1255, 1256 n. 1, 924 N.Y.S.2d 214 [2011],lv. denied17 N.Y.3d 708, 2011 WL 4027481 [2011] ). Nor did the court abuse its discretion in declining to grant an adjournment for the purpose of the father's attendance and testimony ( see Matter of Steven B., 6 N.Y.3d 888, 889, 817 N.Y.S.2d 599, 850 N.E.2d 646 [2006];Matter of Rosalyn YY. v. Otsego County Dept. of Social Servs., 101 A.D.3d at 1403, 956 N.Y.S.2d 322;Matter of Beverly EE. [Ryan FF.], 88 A.D.3d 1086, 1088, 931 N.Y.S.2d 269 [2011] ), which, in any event, was never requested by counsel ( see Matter of Arianna BB. [Tracy DD.], 110 A.D.3d 1194, 1195, 974 N.Y.S.2d 586 [2013],lvs. denied22 N.Y.3d 858, 2014 WL 112402 [Jan. 9, 2014], ––– A.D.3d ––––, 2014 WL 112403 [Jan. 9, 2014]; Matter of Rosalyn YY. v. Otsego County Dept. of Social Servs., 101 A.D.3d at 1403, 956 N.Y.S.2d 322;Matter of Alexander G. [Tatiana G.], 93 A.D.3d 904, 905 n., 940 N.Y.S.2d 189 [2012] ). Furthermore, the father was well aware of the trial date, having been present at a May 15, 2012 conference when the date was set, had a history of nonappearance and failed to proffer a good excuse for failing to appear, allegedly choosing to attend work instead of the trial.

Turning to the merits, the father contends that there were no extraordinary circumstances present to support the award of custody to petitioner. When a nonparent seeks custody, he or she bears the heavy burden of first establishing the existence of extraordinary circumstances to overcome the biological parents' superior right of custody ( see Matter of Ettari v. Peart, 110 A.D.3d 1256, 1256–1257, 973 N.Y.S.2d 456 [2013];Matter of Golden v. Golden, 91 A.D.3d 1042, 1043, 938 N.Y.S.2d 207 [2012];Matter of Daphne OO. v. Frederick QQ., 88 A.D.3d 1167, 1168, 931 N.Y.S.2d 751 [2011] ). Factors to be considered in determining the existence of extraordinary circumstances include “ ‘the length of time the child has lived with the nonparent, the quality of that relationship and the length of time the biological parent allowed such custody to continue without trying to assume the primary parental role’ ” (Matter of Burton v. Barrett, 104 A.D.3d 1084, 1085, 961 N.Y.S.2d 610 [2013], quoting Matter of Bevins v. Witherbee, 20 A.D.3d 718, 719, 798 N.Y.S.2d 245 [2005];accord Matter of Marcus CC. v. Erica BB., 107 A.D.3d 1243, 1244–1245, 967 N.Y.S.2d 503 [2013],appeal dismissed22 N.Y.3d 911, 975 N.Y.S.2d 731, 998 N.E.2d 394 [2013] ). Extraordinary circumstances have been found where a parent has voluntarily relinquished care and control of a child and the child has resided in the household of a grandparent for 24 continuous months ( see e.g. Matter of Ferguson v. Skelly, 80 A.D.3d 903, 904, 914 N.Y.S.2d 428 [2011],lv. denied16 N.Y.3d 710, 2011 WL 1584758 [2011];Matter of Arlene Y. v. Warren County Dept. of Social Servs., 76 A.D.3d 720, 721, 906 N.Y.S.2d 645 [2010],lv. denied15 N.Y.3d 713, 2010 WL 4628641 [2010];see alsoDomestic Relations Law § 72[2][a], [b] ). Once extraordinary circumstances have been established, custody must then be determined according to the best interests of the children ( see Matter of Ettari v. Peart, 110 A.D.3d at 1257, 973 N.Y.S.2d 456; Matter of Marcus CC. v. Erica BB., 107 A.D.3d at 1245, 967 N.Y.S.2d 503;Matter of Tennant v. Philpot, 77 A.D.3d 1086, 1087–1088, 909 N.Y.S.2d 225 [2010] ).

Here, the record...