Matter of Guinta v. Doxtator

• Decision Date: 29 April 2005
• Docket Number: CAF 04-01096.
• Citation: 2005 NY Slip Op 03352,794 N.Y.S.2d 516,20 A.D.3d 47
• Parties: In the Matter of MICHAEL A. GUINTA et al., Appellants, v. BRIDGET S. DOXTATOR et al., Respondents.
• Court: New York Supreme Court — Appellate Division

20 A.D.3d 47

794 N.Y.S.2d 516

2005 NY Slip Op 03352

In the Matter of MICHAEL A. GUINTA et al., Appellants, v. BRIDGET S. DOXTATOR et al., Respondents.

CAF 04-01096.

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

April 29, 2005.

APPEAL from an order of the Family Court, Onondaga County (David G. Klim, J.), entered January 22, 2004 in a proceeding pursuant to Family Court Act article 6. The order denied and dismissed the petition to modify a prior joint custody order by granting petitioners sole custody and to end overnight visitation with respondents, and granted respondents' cross petition for sole custody.

J. Scott Porter, Syracuse, for appellants.

Frank H. Hiscock Legal Aid Society, Syracuse (Robert P. Rickert of counsel), for respondents.

Daniel F. Mathews, III, Law Guardian, Syracuse, for infant.

OPINION OF THE COURT

PINE, J.

This appeal requires us to determine whether, in a custody dispute between parents and nonparents, a court that has previously found extraordinary circumstances and awarded joint custody to the parties may, upon petitions from both parties seeking sole custody based on a change of circumstances and the best interests of the child, revisit the issue of extraordinary circumstances, find that they no longer exist, and award custody of the child to the parents as a matter of right without consideration of the child's best interests. No reported New York case has addressed that issue. For the reasons that follow, we hold that, under such circumstances, the court may not revisit the issue of extraordinary circumstances.

I

Petitioners, the paternal aunt and uncle of now six-year-old Dayona D., appeal from an order that "denied and dismissed" their petition seeking to modify a prior order of custody and granted respondents' cross petition seeking to modify that prior order. Family Court had previously awarded custody of Dayona jointly to petitioners and respondents, the birth parents, with primary physical residence to petitioners and liberal visitation to respondents. The court issued that prior order based on a finding that extraordinary circumstances existed and that such arrangement was in the best interests of Dayona (see generally Matter of Bennett v Jeffreys, 40 NY2d 543 [1976]). Thereafter petitioners and respondents both sought to modify that order and obtain sole custody, alleging only that there had been a change of circumstances. The court, sua sponte, determined that extraordinary circumstances no longer existed and awarded sole custody to respondents. That part of the order directing transfer of sole custody to respondents on September 1, 2004 was stayed by order of this Court.^*

On this appeal, petitioners contend that the court erred in applying the extraordinary circumstances test in a modification proceeding and that it is in Dayona's best interests for petitioners to have sole custody. Respondents contend that the court had discretion to apply the extraordinary circumstances test and that we should not undertake a best interests analysis. For the reasons that follow, we conclude that the court erred in applying the extraordinary circumstances test a second time in a modification proceeding and that the proper standard is whether either petitioners or respondents established "a change [of] circumstances which reflects a real need for change to ensure the best interest[s] of the child" (Matter of Irwin v Neyland, 213 AD2d 773, 773 [1995]).

II

Dayona was born on January 16, 1999 and, shortly thereafter, respondents asked Dayona's paternal grandmother to care for the child while respondent Bridget S. Doxtator served a jail sentence. Indeed, both respondents have a lengthy history of substance abuse and criminal behavior. By stipulated order, the grandmother and respondents were awarded joint custody of Dayona. Subsequently, the grandmother was awarded sole custody by a default order, but petitioners took over the care of the child. In December 2000, respondents petitioned and petitioners cross-petitioned for custody of Dayona. Family Court found that extraordinary circumstances existed, noting that respondents had, at one point, gone one year without any contact with Dayona, thereby abdicating all parental responsibilities to petitioners. The court further found that the "pattern of neglect and abandonment" of respondents was "obviously attributable to their persistent criminal behavior and their underlying problems with drugs and alcohol." Despite respondents' then 10-month period of sobriety and lawful behavior, the court concluded that such a praiseworthy achievement had to be balanced with respondents' "almost 20 year history of drug and alcohol abuse and severe criminal problems." The court granted respondents liberal visitation, including alternate weekends. That order was affirmed by this Court on December 30, 2002 (Matter of Doxtator v Darling, 300 AD2d 1075 [2002]).

In April 2003, petitioners filed a petition seeking sole custody of Dayona and suspension of future visitation between respondents and the child based on an alleged change of circumstances. Petitioners alleged an inability to communicate with respondents; a lack of cooperation from respondents; a failure by respondents to focus on Dayona's needs; a failure by respondents to become actively involved in Dayona's development; and a failure by respondents to provide a suitable and stable home environment. Specifically, petitioners expressed concern over conditions in respondents' home that included the violent behavior of another child living in the home.

Respondents cross-petitioned for sole custody, alleging that there had been a significant change of circumstances in that petitioners failed to acknowledge respondents' rights, thwarted respondents' efforts and had attempted to change Dayona's name. Respondents further alleged that they were able to provide a stable home and that it would be in the best interests of Dayona to be with her parents and siblings.

Following six days of testimony, the court determined that, because extraordinary circumstances no longer existed, Dayona must be returned to respondents, her birth parents. The court did not determine whether there had been a change of circumstances nor did it consider the child's best interests, the standard both petitioners and respondents had attempted to satisfy.

III

On appeal, petitioners contend that the court is precluded from revisiting the issue of extraordinary circumstances where, as here, there has been a prior judicial determination that such circumstances existed. Petitioners rely on language in Matter of Gary G. v Roslyn P. (248 AD2d 980 [1998]). In that case we wrote that a parent has a superior right to custody and thus a nonparent seeking custody has a burden of proving that extraordinary circumstances exist. We noted that "[t]he 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" (id. at 981; see Matter of Michael G.B. v Angela L.B., 219 AD2d 289, 292 [1996]). That case, however, did not involve a reassessment of extraordinary circumstances. Rather, we held that, in the absence of a prior determination of extraordinary circumstances, "the record [was] adequate to enable us to apply the `extraordinary circumstances' test, and we reach[ed] that issue in the interest of judicial economy" (Gary G., 248 AD2d at 981). In Matter of Ash v Jones (281 AD2d 930, 930 [2001]), we noted that the court had previously determined that extraordinary circumstances exist and held that "a change in custody is warranted only if it is in the best interests of the child." While that case may imply that reassessment of extraordinary circumstances is not required, it does not address whether a court is precluded from engaging in such a reassessment.

Here, as previously noted, we are called upon to determine whether a court in a proceeding to modify a prior custody order may revisit the issue of extraordinary circumstances where there has been a prior judicial determination that extraordinary circumstances exist, thereby possibly restoring the birth parents to their preferred status, or whether, after a court has made a judicial determination that extraordinary circumstances warranted an award of custody to a nonparent, the test is whether there has been a change of circumstances requiring a change of custody to ensure the best interests of the child. We conclude that, once the preferred status of the birth parent under Bennett (40 NY2d 543 [1976]) has been lost by a judicial determination of extraordinary circumstances, the appropriate standard in addressing the possible modification of the prior order is whether there has been a change of circumstances requiring a modification of custody to ensure the best interests of the child.

IV

Like most states, New York recognizes "`that a parent has a right to rear his [or her] child superior to that of a nonparent'" (Matter of Cote v Brown, 299 AD2d 876, 877 [2002], quoting People ex rel. Anderson v Mott, 199 AD2d 961, 961 [1993]; see Bennett, 40 NY2d at 546-548; Gary G., 248 AD2d at 981). That "parental preference" is one of two "foundational policies in child custody law" (C.R.B. v C.C., 959 P2d 375, 379 [Alaska 1998]; see Taylor, C.R.B. v. C.C. and B.C.: Protecting Children's Need for Stability in Custody Modification Disputes Between Biological Parents and Third Parties, 32 Akron L Rev 371, 372 [1999]), and it is applied to avoid "totalitarian social engineering" that could occur if nonparents could seek an initial award of custody merely by showing that they could better care for a child (C.R.B., 959 P2d at 380). The other foundational policy is the child's need for stability (see id. at 379; Taylor, 32 Akron L Rev at 372).

Policies differ among the states with respect to criteria for modifying custody orders. Numerous states adhere to the...