In the Matter of Amanda B. v. Anthony B., CAF 03-01796.

• Decision Date: 30 December 2004
• Docket Number: CAF 03-01796.
• Citation: 787 N.Y.S.2d 808,13 A.D.3d 1126,2004 NY Slip Op 09852
• Parties: In the Matter of AMANDA B., Appellant, v. ANTHONY B., Respondent. (Proceeding No. 1.) In the Matter of ANTHONY B. et al., Respondents, v. AMANDA B., Appellant. (Proceeding No. 2.)
• Court: New York Supreme Court — Appellate Division

13 A.D.3d 1126

787 N.Y.S.2d 808

2004 NY Slip Op 09852

In the Matter of AMANDA B., Appellant, v. ANTHONY B., Respondent. (Proceeding No. 1.)

In the Matter of ANTHONY B. et al., Respondents, v. AMANDA B., Appellant. (Proceeding No. 2.)

CAF 03-01796.

Appellate Division of the Supreme Court of the State of New York, Fourth Department.

December 30, 2004.

Appeal from an order of the Family Court, Steuben County (Marianne Furfure, J.), entered August 22, 2003 in a proceeding pursuant to Family Ct Act article 6. The order, among other things, awarded joint custody of the child to the father and paternal grandmother and visitation to the mother.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum:

Amanda B., the petitioner in proceeding No. 1 and the respondent in proceeding No. 2 (mother), and Anthony B., the respondent in proceeding No. 1 and a petitioner in proceeding No. 2 (father), are the parents of Angela, who was four years old at the time of trial. Angela was born when mother and father were both young, and mother and father relied on the assistance of their parents in raising Angela. The family resided with each set of Angela's grandparents for a while before eventually residing in its own residence. However, following the death of a younger sibling from asphyxiation while sleeping, Angela was placed with her maternal grandmother and mother and father separated. After approximately two years and pursuant to a consensual custody arrangement, custody of Angela was placed with mother and father had visitation. Approximately six months later, mother filed a petition to restrict father's visitation with Angela, and thereafter father and his mother, Margaret R. (paternal grandmother), and his stepfather, John R., who are the petitioners in proceeding No. 2, sought custody of Angela. After the trial, Family Court granted joint custody of Angela to father and paternal grandmother with visitation to mother, and mother now appeals.

We agree with mother that the court erred in not determining whether extraordinary circumstances existed before awarding joint custody to paternal grandmother. It is well settled that a nonparent must establish extraordinary circumstances when seeking custody of a child (see Matter of Bennett v Jeffreys, 40 NY2d 543, 544 [1976]; Matter of Michael G.B. v Angela L.B., 219 AD2d 289, 291 [1996]). This is true whether the nonparent is seeking sole custody or joint custody with one of the parents (see Matter of Ellen K. v John K., 186 AD2d 656, 658 [1992]; Matter of Abaire v Himmelberger, 163 AD2d 626, 626-627 [1990]; see also Matter of Blasdell v DeGolier, 303 AD2d 1045, 1046 [2003]). Although the court did not make a determination on extraordinary circumstances, the record is sufficient for us to make that determination (see Michael G.B., 219 AD2d at 292).

A nonparent must establish "surrender, abandonment, persisting neglect, unfitness or other like extraordinary circumstances" before a parent can be deprived of custody of her child (Bennett, 40 NY2d at 544). Here, the record establishes that mother is an unfit parent for Angela because of her repeated allegations of sexual abuse by father that were unfounded and detrimental to the child and her relationship with father. "A concerted effort by one parent to interfere with the other parent's contact with the child is so inimical to the best interests of the child . . . as to, per se, raise a strong probability that [the interfering parent] is unfit to act as custodial parent" (Matter of Turner v Turner, 260 AD2d 953, 954 [1999] [internal quotation marks omitted]; see Matter of Taber v Taylor, 238 AD2d 696, 697-698 [1997]). Mother filed seven reports of suspected sexual abuse of Angela by father during the one year when she had custody of Angela. All seven reports were investigated, including interviews by caseworkers with mother, Angela, father, and paternal grandmother. The State Police were called in...