Burton v. Locke

• Decision Date: 28 March 2013
• Citation: 2013 N.Y. Slip Op. 02120,961 N.Y.S.2d 610,104 A.D.3d 1084
• Parties: In the Matter of Bryanne M. BURTON, Respondent, v. Matthew S. BARRETT, Deceased, Respondent, and Susan Locke, Appellant. (Proceeding No. 1.) In the Matter of Susan Locke, Appellant, v. Bryanne M. Burton, Respondent. (Proceeding No. 2.)
• Court: New York Supreme Court — Appellate Division

104 A.D.3d 1084

961 N.Y.S.2d 610

2013 N.Y. Slip Op. 02120

In the Matter of Bryanne M. BURTON, Respondent,

v.Matthew S. BARRETT, Deceased, Respondent,andSusan Locke, Appellant. (Proceeding No. 1.)

In the Matter of Susan Locke, Appellant,

v.Bryanne M. Burton, Respondent. (Proceeding No. 2.)

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

March 28, 2013.

The Law Office of Carman M. Garufi, Binghamton (Alena E. Van Tull of counsel), for appellant.

Levene, Gouldin & Thompson, Binghamton (Terrence M. McGinness of counsel), for Bryanne M. Burton, respondent.

Christopher A. Pogson, Binghamton, attorney for the child.

Before: PETERS, P.J., SPAIN, GARRY and EGAN JR., JJ.

PETERS, P.J.

Appeal from an order of the Family Court of Broome County (Pines, J.), entered November 29, 2011, which, among other things, granted petitioner's application, in proceeding No. 1 pursuant to Family Ct. Act article 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 the child's primary residence to be with the father. The mother was granted access consisting of three weekends per month along with weekly three-hour visits. The child resided with her father at the home of Susan Locke, her paternal grandmother, until October 2010, when the father committed suicide. Shortly thereafter, the mother and grandmother each petitioned for custody of the child, and Family Court temporarily continued her primary physical residence with the grandmother. Following a fact-finding hearing, Family Court determined that the grandmother had not demonstrated the existence of extraordinary circumstances, granted the mother sole custody of the child and awarded the grandmother visitation once per month from Friday after school until Saturday at 8:00 p.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, persistent neglect, unfitness, disruption of custody over an extended period of time or other extraordinary circumstances” (Matter of Carpenter v. Puglese, 94 A.D.3d 1367, 1368, 943 N.Y.S.2d 252 [2012] [internal quotation marks and citation omitted]; see Matter of Bennett v. Jeffreys, 40 N.Y.2d 543, 549, 387 N.Y.S.2d 821, 356 N.E.2d 277 [1976];Matter of Aylward v. Bailey, 91 A.D.3d 1135, 1135–1136, 938 N.Y.S.2d 215 [2012] ). Factors to be considered in ascertaining whether extraordinary circumstances exist 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 Bevins v. Witherbee, 20 A.D.3d 718, 719, 798 N.Y.S.2d 245 [2005];accord Matter of Golden v. Golden, 91 A.D.3d 1042, 1043, 938 N.Y.S.2d 207 [2012];Matter of James NN. v. Cortland County Dept. of Social Servs., 90 A.D.3d 1096, 1097–1098, 934 N.Y.S.2d 555 [2011] ). Mindful that courts are “powerless to supplant parents except for grievous cause or necessity” (Matter of Bennett v. Jeffreys, 40 N.Y.2d at 546, 387 N.Y.S.2d 821, 356 N.E.2d 277), the circumstances must be such that they “drastically affect the welfare of the child” ( id. at 549, 387 N.Y.S.2d 821, 356 N.E.2d 277;accord Matter of Ramos v. Ramos, 75 A.D.3d 1008, 1010, 905 N.Y.S.2d 717 [2010];see Matter of James NN. v. Cortland County Dept. of Social Servs., 90 A.D.3d at 1098, 934 N.Y.S.2d 555). The burden of proof rests with the nonparent seeking custody ( see Matter of Golden v. Golden, 91 A.D.3d at 1043, 938 N.Y.S.2d 207).

Here, according the appropriate deference to Family Court's factual findings and credibility determinations ( see Matter of Melody J. v. Clinton County Dept. of Social Servs., 72 A.D.3d 1359, 1360, 899 N.Y.S.2d 419 [2010],lv. denied15 N.Y.3d 703, 906 N.Y.S.2d 816, 933 N.E.2d 215 [2010];Matter of Magana v. Santos, 70 A.D.3d 1208, 1209, 895 N.Y.S.2d 254 [2010] ), we find a sound and substantial basis for its determination that extraordinary circumstances were not shown to warrant depriving the mother of custody. Although the child resided with her father at the grandmother's home following the 2009 joint custody order, it was the father who served as the child's primary custodian, with the grandmother aiding 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, upon learning of the father's death, she immediately filed for sole custody. While the evidence established that the mother has had a number of residences, lived at times with unsuitable companions and admittedly used alcohol and drugs in the past, she has not been the subject of any abuse or neglect proceeding and, although her youth and lack of maturity led to lapses in parental judgment, it is equally clear that she has since matured and taken positive steps to address and resolve those shortcomings ( see Matter of Ramos v. Ramos, 75 A.D.3d at 1011–1012, 905 N.Y.S.2d 717;Matter of Cortright v. Workman, 304 A.D.2d 862, 863, 757 N.Y.S.2d 628 [2003];Matter of Gray v. Chambers, 222 A.D.2d 753, 754, 634 N.Y.S.2d 864 [1995],lv. denied87 N.Y.2d 811, 644 N.Y.S.2d 144, 666 N.E.2d 1058 [1996];Matter of Culver v. Culver, 190 A.D.2d 960, 961, 594 N.Y.S.2d 68 [1993] ). With the grandmother having failed to prove extraordinary circumstances, a best interests assessment was not warranted ( see Matter of Bennett v. Jeffreys, 40 N.Y.2d at 548, 387 N.Y.S.2d 821, 356 N.E.2d 277;Matter of Ferguson v. Skelly, 80 A.D.3d 903, 906, 914 N.Y.S.2d 428 [2011],lv. denied16 N.Y.3d 710, 922 N.Y.S.2d 272, 947 N.E.2d 164 [2011];Matter of Campbell v. Brewster, 9 A.D.3d 620, 622, 779 N.Y.S.2d 665 [2004] ). Thus, custody was properly awarded to the mother.

We do, however, agree with the grandmother's contention that Family Court should have awarded her more frequent visitation. There being no dispute that she has standing to seek visitation ( seeDomestic Relations Law § 72[1]; Matter of Varney v. McKee, 44 A.D.3d 1178, 1179, 845 N.Y.S.2d 475 [2007] ), the issue distills to whether Family Court properly exercised its discretion in determining a visitation schedule that would be in the best interests of the child ( see Matter of Terwilliger v. Jubie, 84 A.D.3d 1520, 1521, 924 N.Y.S.2d 180 [2011];Matter of Johnson v. Zides, 57 A.D.3d 1318, 1319, 870 N.Y.S.2d 576 [2008] ). Here, while Family Court acknowledged that the child had a longstanding relationship with the grandmother and stated in its decision that it would award “regular visitation,” it provided the grandmother with merely one 28–hour overnight period of visitation per month. Moreover, in so doing, the court failed to set forth the ultimate facts it considered in reaching its determination that it was in the best interests of the child to provide such limited contact between the child and the paternal grandmother. This need not detain us, however, as our authority in custody matters is as broad as that of Family Court and the record is sufficiently complete to allow us to perform a comprehensive best interests analysis ( see Matter of Valenti v. Valenti, 57 A.D.3d 1131, 1132, 869 N.Y.S.2d 266 [2008],lv. denied12 N.Y.3d 703, 876 N.Y.S.2d 704, 904 N.E.2d 841 [2009];Matter of Cree v....