Ettari v. Peart

• Decision Date: 24 October 2013
• Citation: 110 A.D.3d 1256,973 N.Y.S.2d 456,2013 N.Y. Slip Op. 06896
• Parties: In the Matter of Theresa ETTARI, Respondent, v. Justine PEART, Now Known as Justine Gauckler, Appellant, and Michael E. Egan, Respondent. (And Another Related Proceeding.).
• Court: New York Supreme Court — Appellate Division

110 A.D.3d 1256

973 N.Y.S.2d 456

2013 N.Y. Slip Op. 06896

In the Matter of Theresa ETTARI, Respondent,

v. Justine PEART, Now Known as Justine Gauckler, Appellant,andMichael E. Egan, Respondent.(And Another Related Proceeding.).

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

Oct. 24, 2013.

Patricia L.R. Rodriguez, Schenectady, for appellant.

Karen R. Crandall, Schenectady, for Theresa Ettari, respondent.

Laura L. Silva, Schenectady, for Michael E. Egan, respondent.

Mitch Kessler, Cohoes, attorney for the child.

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

ROSE, J.

Appeal from an order of the Family Court of Schenectady County (Clark, J.), entered October 4, 2011, which, among other things, granted petitioner's amended application, in a proceeding pursuant to Family Ct. Act article 6, for custody of respondents' children.

Respondents, Justine Peart (hereinafter the mother) and Michael E. Egan (hereinafter the father), were living together when their son was born in 2007. The mother moved out soon thereafter and their daughter was born later that year, four months premature. Pursuant to a 2008 Family Court order, the mother and father had joint legal custody of the son with primary physical custody to the father and three nights of parenting time a week to the mother. The mother often failed to exercise her parenting time, however, and the father regularly relied on petitioner, the paternal grandmother, for childcare. Petitioner also assisted the mother in caring for the daughter, having been present for her birth and believing that she was her grandchild even though paternity was not established until 2009.

Later in 2008, the mother consented to findings of neglect based upon allegations that she was abusing prescription medication and marihuana, hitting the children, locking them in their rooms and giving them cold medicine to sleep. An order of supervision was then entered to address her substance abuse and mental health issues. In 2009, the mother moved to Tennessee, taking first the daughter and then, after the father was incarcerated for an armed robbery, the son. Petitioner then commenced this proceeding seeking sole custody of the children. The father, who had pleaded guilty to the robbery and been sentenced to a 13 1/2-year prison term, supported petitioner's request. Following a fact-finding hearing, petitioner was awarded sole custody of the children and the mother appeals.

As a nonparent seeking custody, petitioner bears the heavy burden of first establishing the existence of extraordinary circumstances so as to overcome the mother's superior right of custody and, once established, custody is then to be determined based upon the children's best interests ( see Matter of Marcus CC. v. Erica BB., 107 A.D.3d 1243, 1244–1245, 967 N.Y.S.2d 503 [2013],appeal dismissed––– N.Y.3d ––––, 2013 WL 5614335 [Oct. 15, 2013]; Matter of James NN. v. Cortland County Dept. of Social Servs., 90 A.D.3d 1096, 1097, 934 N.Y.S.2d 555 [2011];Matter of Tennant v. Philpot, 77 A.D.3d 1086, 1087–1088, 909 N.Y.S.2d 225 [2010] ). Here, the record confirms Family Court's findings that the mother has a history of instability, having moved frequently, continues to drink alcohol and use drugs, and suffers from untreated mental illness. She surreptitiously married an inmate while living with the father and, despite her knowledge to the contrary, she named a parolee as the daughter's father. Her current husband is an admitted drug abuser with an outstanding warrant for his arrest and an order of protection in New York preventing him from being the sole caretaker for the children. Although the mother spent time in inpatient drug rehabilitation, she denied that she had a substance abuse...