Robinson v. McNair

• Decision Date: 13 December 2011
• Parties: In the Matter of Natalie ROBINSON, petitioner-respondent, v. Ayesha McNAIR, appellant,Leonard Robinson, respondent. (Proceeding No. 1).In the Matter of Ayesha McNair, petitioner-appellant, v. Natalie Robinson, respondent. (Proceeding No. 2).(and a related proceeding).
• Court: New York Supreme Court — Appellate Division

2011 N.Y. Slip Op. 09131
90 A.D.3d 759
934 N.Y.S.2d 232

In the Matter of Natalie ROBINSON, petitioner-respondent,
v.
Ayesha McNAIR, appellant,Leonard Robinson, respondent. (Proceeding No. 1).In the Matter of Ayesha McNair, petitioner-appellant,
v.
Natalie Robinson, respondent. (Proceeding No. 2).(and a related proceeding).

Supreme Court, Appellate Division, Second Department, New York.

Dec. 13, 2011.

[934 N.Y.S.2d 233]

Zvi Ostrin, New York, N.Y., for appellant.

Karen P. Simmons, Brooklyn, N.Y. (Barbara H. Dildine of counsel), attorney for the children.

MARK C. DILLON, J.P., RANDALL T. ENG, PLUMMER E. LOTT, and LEONARD B. AUSTIN, JJ.

[90 A.D.3d 759] In related child custody and visitation proceedings pursuant to Family Court Act article 6, the mother appeals from an order of the Family Court, Kings County (Krauss, J.), dated July 20, 2010, which, after a hearing, granted the petition of the subject children's aunt, Natalie Robinson, for sole custody of the children and denied the mother's petitions for custody and visitation.

ORDERED that the order is affirmed, without costs or disbursements.

[90 A.D.3d 760] From the time of their respective births, the subject children, who were born in February 1997, and April 1998, resided in the house of their paternal aunt, Natalie Robinson (hereinafter Robinson), with their mother, who was their primary caregiver. At some point thereafter, the mother and the children moved out of Robinson's house. Since 2003, however, the children, without their mother, have continuously lived with Robinson. In March 2006, Robinson filed a petition in Family Court seeking custody of both children, and she was awarded temporary custody on July 31, 2006. Thereafter, the mother filed petitions for custody and visitation. After a lengthy hearing, the Family Court granted Robinson's petition for sole custody of the children and denied the mother's petitions. We affirm.

“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 similar extraordinary circumstances” ( Matter of Gilchrest v. Patterson, 55 A.D.3d 833, 833, 866 N.Y.S.2d 296; see Matter of Bennett v. Jeffreys, 40 N.Y.2d 543, 548, 387 N.Y.S.2d 821, 356 N.E.2d 277; Matter of Brown v. Zuzierla, 73 A.D.3d 765, 900 N.Y.S.2d 414). Accordingly, a nonparent who seeks custody of a child against the wishes of the child's parent has the initial burden of establishing that...