Byler v. Byler, 452 CAF 21-01187

• Court: New York Supreme Court Appellate Division
• Citation: 2022 NY Slip Op 04253
• Docket Number: 452 CAF 21-01187
• Parties: IN THE MATTER OF MELINDA BYLER, PETITIONER-APPELLANT, v. KENNETH BYLER AND MARY BYLER, RESPONDENTS-RESPONDENTS.
• Decision Date: 01 July 2022

2022 NY Slip Op 04253

IN THE MATTER OF MELINDA BYLER, PETITIONER-APPELLANT,
v.
KENNETH BYLER AND MARY BYLER, RESPONDENTS-RESPONDENTS.

No. 452 CAF 21-01187

Supreme Court of New York, Fourth Department

July 1, 2022

CAITLIN M. CONNELLY, BUFFALO, FOR PETITIONER-APPELLANT.

AVERY S. OLSON, JAMESTOWN, ATTORNEY FOR THE CHILDREN.

PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, NEMOYER, AND WINSLOW, JJ.

Appeal from an order of the Family Court, Chautauqua County (Michael J. Sullivan, J.), entered August 5, 2021 in a proceeding pursuant to Family Court Act article 6. The order, inter alia, awarded respondent Mary Byler sole custody of the subject children.

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum: In this proceeding pursuant to Family Court Act article 6, petitioner mother appeals from an order that, inter alia, determined following a hearing that respondent Mary Byler (aunt), the subject children's paternal aunt, established extraordinary circumstances, ordered that it was in the best interests of the children to remain in the care of the aunt, awarded the aunt sole custody and physical placement of the children, and awarded the mother visitation in the form of weekly video/electronic communication with the children. We affirm.

" '[A]s between a parent and a nonparent, the parent has a superior right to custody that cannot be denied unless the nonparent establishes that the parent has relinquished that right because of surrender, abandonment, persisting neglect, unfitness or other like extraordinary circumstances... The nonparent has the burden of proving that extraordinary circumstances exist, and until such circumstances are shown, the court does not reach the issue of the best interests of the child'" (Matter of Orlowski v Zwack, 147 A.D.3d 1445, 1446 [4th Dept 2017]; see Matter of Bennett v Jeffreys, 40 N.Y.2d 543, 545-546 [1976]; Matter of Byler v Byler, 185 A.D.3d 1403, 1404 [4th Dept 2020]). That rule" 'applies even if there is an existing order of custody concerning that child unless there is a prior determination that extraordinary circumstances exist'" (Matter of Wolfford v Stephens, 145 A.D.3d 1569, 1570 [4th Dept 2016]; see Byler, 185 A.D.3d at 1404; Orlowski, 147 A.D.3d at 1446)." 'Examples of extraordinary circumstances found by courts include prolonged separation, disruption of custody for a prolonged period of time and attachment of the child to the custodian..., sibling separation..., psychological bonding of the child to the custodian and potential harm to the child..., the biological parent's abdication of parental rights and responsibilities... and the child's poor relationship with the biological parent'" (Matter of Hilkert v Parsons-O'Dell, 187 A.D.3d 1675, 1676 [4th Dept 2020], lv denied 36 N.Y.3d 905 [2021]).

The mother contends that Family Court erred in determining that extraordinary circumstances existed, thereby warranting an inquiry into the best interests of the children, because the evidence at the hearing was insufficient to meet the aunt's burden. We reject that contention. Preliminarily, contrary to the mother's assertion, the court's "determination to credit the [aunt's] testimony over the mother's in determining the existence of extraordinary circumstances is entitled to great deference" and, here, we see no reason to disturb that credibility determination (Matter of Johnson v Wellington, 185 A.D.3d 1549, 1549-1550 [4th Dept 2020]; see Matter of Miner v Torres, 179 A.D.3d 1490, 1491 [4th Dept 2020]). As a further preliminary matter, we reject the mother's challenge to the admission at the hearing of threatening text messages and website posts made by her inasmuch as she waived that challenge by stipulating to the...