Ferguson v. Skelly

• Decision Date: 13 January 2011
• Citation: 914 N.Y.S.2d 428,80 A.D.3d 903
• Parties: In the Matter of Robert S. FERGUSON, Respondent, v. Jeffrey MichaeL SKELLY et al., Appellants, et al., Respondent.
• Court: New York Supreme Court — Appellate Division

914 N.Y.S.2d 428 80 A.D.3d 903 In the Matter of Robert S. FERGUSON, Respondent, v. Jeffrey MichaeL SKELLY et al., Appellants, et al., Respondent. Supreme Court, Appellate Division, Third Department, New York. Jan. 13, 2011.

Cynthia Feathers, Saratoga Springs, for Jeffrey Michael Skelly, appellant.

John A. Cirando, Syracuse, for Heather J. Skelly-Ferguson, appellant.

Robert S. Ferguson, Flagstaff, Arizona, respondent pro se.

Verner M. Ingram Jr., Potsdam, attorney for the children.

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

EGAN JR., J.

Appeal from an order of the Family Court of St. Lawrence County (Potter, J.), entered August 6, 2009, which granted petitioner's application, in a proceeding pursuant to Family Ct Act article 6, to modify a prior order of custody.

Petitioner (hereinafter the father) and respondent Heather J. Skelly-Ferguson (hereinafter the mother) are the divorced parents of two sons (born in 2003 and 2004). The father and mother met in 2001 in Arizona and, thereafter, both regularly abused methamphetamine and other drugs. The mother and father attempted to stop using drugs after the mother became pregnant with their first child. After the first child was born,the mother, the father, the mother's daughter from a previous relationship, and the child moved to the City of Ogdensberg, St. Lawrence County to live with respondent Jeffrey Michael Skelly-the children's maternal grandfather-during which time the parents, although occasionally drinking alcohol, remained drug free. After the mother became pregnant with the second child, the family left the grandfather's home and eventually moved to Phoenix, Arizona. Within a month of the birth of the parties' second child, the mother and father both resumed their drug abuse. The mother and father separated, and the father and the children returned to Ogdensburg in June 2005 and lived, back and forth, between the grandfather's home and the home of the grandfather's girlfriend. Although the mother and father reunited at some point and returned to New York, this reunification was short lived, and, in May 2007, the father asked the grandfather to take care of the children while he "got [his] life together" in Arizona. In June 2007, the grandfather filed a proceeding seeking custody of the children. In November 2007, an order was entered whereby the father and grandfather stipulated that extraordinary circumstances existed which warranted a grant of custody of the children to the grandfather with certain visitation to the father to be agreed upon.¹ In August 2008, the father commenced the instant modification proceeding seeking sole custody of his children. After a hearing, Family Court granted the father's petition, and the mother and grandfather now appeal.

"[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 Gray v. Chambers, 222 A.D.2d 753, 753, 634 N.Y.S.2d 864 [1995], lv. denied 87 N.Y.2d 811, 644 N.Y.S.2d 144, 666 N.E.2d 1058 [1996]; accord. 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. denied 15 N.Y.3d 713, 2010 WL 4628641 [2010] ). A prolonged separation of the parent from a child " 'for at least [24] continuous months during which the parent voluntarily relinquished care and control of the child and the child resided in the household of [a] grandparent' " has been held to constitute such a disruption of custody ( Matter of Gale v. Gray, 39 A.D.3d 903, 904, 834 N.Y.S.2d 553 [2007], quoting Domestic Relations Law § 72[2][b] ); see Matter of Arlene Y. v. Warren County Dept. of Social Servs., 76 A.D.3d at 721, 906 N.Y.S.2d 645. However, a "period of separation during which a parent is trying to regain custody lawfully is entitled to little, if any, consideration" ( Matter of Gale v. Gray, 39 A.D.3d at 904-905, 834 N.Y.S.2d 553[internal quotation marks and citation omitted] ). Evidence that the parent has failed either to maintain substantial, repeated and continuous contact with a child or to plan for the child's future has been found to constitute persistent neglect sufficient to rise to the level of an extraordinary circumstance ( see Matter of Arlene Y. v. Warren County Dept. of Social Servs., 76 A.D.3d at 721, 906 N.Y.S.2d 645). Other factors to be considered 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 Lori MM. v. Amanda NN., 75 A.D.3d 774, 775, 904 N.Y.S.2d 810 [2010] [internal quotation marks and citations omitted]; accord. Matter of Turner v. Maiden, 70 A.D.3d 1214, 1215, 894 N.Y.S.2d 602 [2010] ). The nonparent bears the heavy burden of establishing the threshold extraordinary circumstances, and the "existence of a prior consent order of custody in favor of the nonparent is not sufficient to demonstrate extraordinary circumstances" ( Matter of Ramos v. Ramos, 75 A.D.3d 1008, 1010, 905 N.Y.S.2d 717 [2010] [internal quotation marks and citations omitted]; see Matter of Moore v. St. Onge, 307 A.D.2d 421, 422, 761 N.Y.S.2d 551 [2003]; Matter of Canabush v. Wancewicz, 193 A.D.2d 260, 263, 603 N.Y.S.2d 230 [1993] ).

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. denied 15 N.Y.3d 703, 2010 WL 2572112 [2010]; Matter of Bronson v. Bronson, 63 A.D.3d 1205, 1206, 881 N.Y.S.2d 197 [2009] ), we find a sound and substantial basis in the record for its determination that extraordinary circumstances did not exist such that the grandfather should retain custody of the children. Prior to May 2007, the children lived between...