Gary G. v. Roslyn P.

• Decision Date: 13 March 1998
• Citation: 248 A.D.2d 980,670 N.Y.S.2d 270
• Parties: , 1998 N.Y. Slip Op. 2458 Matter of GARY G. and Lenora M., Appellants, v. ROSLYN P. and Billene P., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 270

670 N.Y.S.2d 270

248 A.D.2d 980, 1998 N.Y. Slip Op. 2458

Matter of GARY G. and Lenora M., Appellants, v. ROSLYN P. and Billene P., Respondents.

Supreme Court, Appellate Division,

Fourth Department.

March 13, 1998.

Kathleen E. Casey, Middleport, for Appellants.

Niagara County Public Defender's Office (Lawrence Lindsay, of counsel), Lockport, for Respondent-Rosley P.

Timothy G. Bax, Niagara Falls, for Respondent-Billene P.

Michael H.A. Heron, Niagara Falls, for Law Guardian.

Before DENMAN, P.J., and GREEN, PINE, CALLAHAN and FALLON, JJ.

MEMORANDUM:

Billene P. gave birth to a daughter, Garisha G., on October 20, 1992. Petitioner Gary G. is Garisha's biological father, and petitioner Lenora M. is Garisha's paternal grandmother.

On March 21, 1995, respondent Roslyn P., Garisha's maternal aunt, filed a petition in Family Court seeking custody of Garisha and Garisha's half-sister, LaShanta P. By order entered May 12, 1995, the court awarded Roslyn custody of both children.

On January 19, 1996, petitioners filed a petition for custody of Garisha. Following a hearing on the petition, the court rejected petitioners' contention that Gary, as the biological father, has a right to custody of Garisha superior to that of Roslyn, a nonparent, absent a showing of extraordinary circumstances. It declined to "rule on petitioners' challenge to Roslyn['s] status as a non-parent [sic] since this [c]ourt had previously awarded custody of Garisha to her". The court applied the "best interests" test and denied the petition. Petitioners appeal. We affirm but for reasons different from those set forth by the court.

It is well established that, as 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" (Matter of Bennett v. Jeffreys, 40 N.Y.2d 543, 544, 387 N.Y.S.2d 821, 356 N.E.2d 277; see, Matter of Michael G.B. v. Angela L.B., 219 A.D.2d 289, 291, 642 N.Y.S.2d 452). "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 Michael G.B. v. Angela L.B., supra, at 291, 642 N.Y.S.2d 452). The foregoing rule applies even if there is an existing order of custody concerning that child unless there is a prior determination that extraordinary circumstances exist (see, Matter of Michael G.B. v. Angela L.B., supra, at 292, 642 N.Y.S.2d 452; see, Matter of Cannon v. Armstrong, 212 A.D.2d 945, 622 N.Y.S.2d 828; Matter of Williams v. Dunston, 202 A.D.2d 681, 609 N.Y.S.2d 643, lv. denied 84 N.Y.2d 803, 617 N.Y.S.2d 137, 641 N.E.2d 158). Because no such prior determination had been made in this case, the court erred in failing to consider whether such circumstances exist to deprive Gary of his superior right to custody before reaching the issue of the best interests of the child.

There is no need to remit for a new hearing to enable the nonparent to offer proof of extraordinary circumstances because the record is adequate to enable us to apply the "extraordinary circumstances" test, and we reach that issue in the interest of judicial economy (see, Matter of Michael G.B. v. Angela L.B., supra, at 292, 642 N.Y.S.2d 452).

We...