Matter of Holmes v. Glover, 2008-07165
| Decision Date | 08 December 2009 |
| Docket Number | Docket No. V-20293-06.,Docket No. V-200292-06,2008-07165 |
| Citation | 890 N.Y.S.2d 629,68 A.D.3d 868,2009 NY Slip Op 9228 |
| Parties | In the Matter of ROBIN HOLMES, Respondent, v. ROBERT GLOVER, JR., Appellant, et al., Respondents. |
| Court | New York Supreme Court — Appellate Division |
Ordered that the order dated June 23, 2008, is modified, on the law, by deleting the provision thereof directing that the testimony taken at the hearing could be used in any abandonment proceeding associated with the adoption of the child by the petitioner; as so modified, the order dated June 23, 2008, is affirmed, without costs or disbursements.
As between a parent and a nonparent, the parent has the superior right to custody that cannot be denied unless the nonparent establishes that the parent has relinquished that right due to surrender, abandonment, persistent neglect, unfitness, or other like extraordinary circumstances (see Matter of Bennett v Jeffreys, 40 NY2d 543, 548 [1976]; Matter of Dungee v Simmons, 307 AD2d 312, 312-313 [2003]). Such "extraordinary circumstances" may exist where there has been an "unfortunate or involuntary disruption of custody over an extended period of time" (Matter of Bennett v Jeffreys, 40 NY2d at 546). The burden of proof is on the nonparent to prove such extraordinary circumstances (see Matter of Darlene T., 28 NY2d 391, 394 [1971]). Absent a finding of extraordinary circumstances, a determination of what is in the best interests of the child is not triggered (see Matter of Nadia Kay R., 125 AD2d 674, 678 [1986]).
Here, the petitioner sustained her burden of demonstrating, prima facie, the existence of extraordinary circumstances. The father voluntarily gave the child to the petitioner pursuant to powers of attorney dated March 2002 and August 2002, respectively, and with the father's acquiescence, the petitioner took the child to live with her in New York while the father resided in Florida. Prior to the commencement of this proceeding in November 2006, the father only visited with the child once, communicated sporadically with the child, primarily by e-mail, and gave no financial or other support to the child's caretaker. In opposition,...
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