Matter of Bevins v. Witherbee

• Decision Date: 14 July 2005
• Docket Number: 96692.
• Citation: 798 N.Y.S.2d 245,20 A.D.3d 718,2005 NY Slip Op 05951
• Parties: In the Matter of JOANNE R. BEVINS, Respondent, v. SHAWN D. WITHERBEE, Appellant, et al., Respondent. (And Two Other Related Proceedings.)
• Court: New York Supreme Court — Appellate Division

20 A.D.3d 718

798 N.Y.S.2d 245

2005 NY Slip Op 05951

In the Matter of JOANNE R. BEVINS, Respondent, v. SHAWN D. WITHERBEE, Appellant, et al., Respondent. (And Two Other Related Proceedings.)

96692.

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

July 14, 2005.

Appeal from an order of the Family Court of Essex County (Lewis, J.H.O.), entered June 17, 2004, which, inter alia, granted petitioner's application, in a proceeding pursuant to Family Ct Act article 6, for custody of petitioner's grandchild.

Rose, J.

Respondent Jenny Lynn La Rose and respondent Shawn D. Witherbee (hereinafter respondent) are the biological parents of a daughter born in 1998. Petitioner is the child's paternal grandmother. The child resided with respondent and La Rose until La Rose left when the child was seven months old. From that time until the child was a little more than four years old, respondent voluntarily placed her in petitioner's custody and she resided primarily at petitioner's home. In June 2002, respondent took the child on a camping trip. He then refused to return the child to petitioner's care and denied petitioner any visitation with her. Petitioner commenced this proceeding to regain physical custody of the child, and a temporary order of custody returned the child to petitioner's care in May 2003. Following a hearing, Family Court found extraordinary circumstances that conferred standing upon petitioner, awarded petitioner sole physical and legal custody of the child, and granted respondent weekly visitation of one weekday evening and one weekend day.^* Respondent appeals.

We affirm. "It is fundamental that 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 AD2d 753, 753 [1995], lv denied 87 NY2d 811 [1996] [citations omitted]). If the court determines that extraordinary circumstances exist, such as where a nonparent has physical custody for an extended period of time (see Matter of Oscarson v Maresca, 232 AD2d 732, 733-734 [1996]), the court's determination of custody must then be made in the child's best interests (see e.g. Matter of Ratliff v Glanda, 263 AD2d 816, 817 [1999]).

In ascertaining whether extraordinary circumstances exist, 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 (see Matter of McDevitt v Stimpson, 281 AD2d 860, 862 [2001]). In reviewing such a determination, we accord great deference to Family Court's factual findings given its opportunity to view the witnesses and assess their credibility (see Matter of McDevitt v Stimpson, 1 AD3d 811, 812 [2003], lv denied 1 NY3d 509 [2004]).

The record here confirms Family Court's finding that the child resided with petitioner for approximately 53 of the first 74 months of her life at respondent's initial request and with his continued acquiescence. Respondent's testimony concerning a portion of that time period disputed that petitioner had custody of the child on occasions other than when he was working. Given this testimony, Family Court allowed that there may have been no continuous period of 24 months during which respondent had relinquished all care and custody of his daughter to petitioner, which would have constituted an extended disruption of custody under Domestic Relations Law § 72 (2) (b). Nonetheless, Family Court appropriately concluded that the child's extended residence with petitioner justified a finding of extraordinary circumstances, particularly since respondent made few efforts to maintain contact with the child while she was in petitioner's...