Roseman v. Sierant
| Decision Date | 30 September 2016 |
| Citation | 38 N.Y.S.3d 295,2016 N.Y. Slip Op. 06326,142 A.D.3d 1323 |
| Parties | In the Matter of Sarah ROSEMAN, Petitioner–Respondent, v. Ernest SIERANT, Respondent–Appellant, and Robin Sierant, Respondent. (Proceeding No. 1.) In the Matter of Cynthia Carroll, Petitioner–Respondent, v. Ernest Sierant, Respondent–Appellant, and Robin Sierant, Respondent. (Proceeding No. 2.). |
| Court | New York Supreme Court — Appellate Division |
Law Offices of Tina C. Bennet, Esq. and Beth A. Lockhart, Esq., Canastota (Beth A. Lockhart Of Counsel), for Respondent–Appellant.
Jason R. Dipasquale, Buffalo, for Petitioner–Respondent Cynthia Carroll.
Koslosky & Koslosky, Utica (William L. Koslosky Of Counsel), for Respondent.
Douglas M. Demarché, Jr., Attorney for the Child, New Hartford.
John J. Raspante, Attorney for the Children, Utica.
PRESENT: WHALEN, P.J., CARNI, LINDLEY, DeJOSEPH, AND NEMOYER, JJ.
Respondent father appeals from an order that, inter alia, granted custody of respondents' eldest minor daughter to petitioner Sarah Roseman in proceeding No. 1 and custody of respondents' other two minor daughters to petitioner Cynthia Carroll in proceeding No. 2. Where, as here, there are “child custody dispute[s] between a parent and [two] nonparents, the parent has a superior right to custody that cannot be denied unless the nonparent[s] establish[ ] that the parent has relinquished that right due to surrender, abandonment, persistent neglect, unfitness, or other extraordinary circumstances” (Matter of Herrera v. Vallejo, 107 A.D.3d 714, 714, 966 N.Y.S.2d 206
; 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
Komenda v. Dininny, 115 A.D.3d 1349, 1350, 983 N.Y.S.2d 188 ). Contrary to the father's contention, the record supports Family Court's determination that petitioners met their burden of establishing such extraordinary circumstances. They presented evidence of the father's long and serious history of alcohol abuse and the “highly unstable and unsafe living situation” such abuse created for the children (Herrera, 107 A.D.3d at 715, 966 N.Y.S.2d 206 ; see
Komenda, 115 A.D.3d at 1350, 983 N.Y.S.2d 188 ). The evidence further established that the father failed to attend to the medical needs of his two youngest daughters (see Matter of
Braun v. Decicco, 117 A.D.3d 1453, 1454, 984 N.Y.S.2d 771, lv. dismissed in part and denied in part 24 N.Y.3d 927, 993 N.Y.S.2d 539, 17 N.E.3d 1135
). Contrary to the father's further contention, a sound and substantial basis in the record supports the court's determination that the best interests of the children would be served by the respective awards of custody to petitioners (see
Herrera, 107 A.D.3d at 715, 966 N.Y.S.2d 206 ). We reject the father's contention that the court erred in denying his request to bifurcate the hearing with respect to the issues of extraordinary circumstances and best interests. While the court was required to conduct an evidentiary hearing concerning both issues (see Matter of Griffin v. Griffin, 117 A.D.3d 1570, 1570–1571, 985 N.Y.S.2d 393
), and it could have conducted separate hearings (see Matter of
Parker v. Tompkins, 273 A.D.2d 890, 890, 708 N.Y.S.2d 791, lv. denied 95 N.Y.2d 762, 715 N.Y.S.2d 215, 738 N.E.2d 363 ), it was not required to do so (see e.g. Matter of
Yandon v. Boisvert, 130 A.D.3d 1257, 1258, 14 N.Y.S.3d 196 ).
The father failed to preserve for our review his contentions concerning the timing of the initial appearance in proceeding No. 1 and the service of the first and second amended petitions in proceeding No. 2 (see Matter of Borggreen v. Borggreen, 13 A.D.3d 756, 757, 785 N.Y.S.2d 792
). The father also failed to preserve for our review his contentions that the court erred in hearing both petitions at the same time, and that he was denied his right to a speedy hearing (see Matter of
Starkey v. Starkey, 247 A.D.2d 894, 894, 668 N.Y.S.2d 526 ). Also unpreserved for our review is the father's contention that the court erred in allowing the mother to participate in the hearing after she stipulated to the custody arrangement sought by petitioners (see Matter of
Cyle J.F. [Alexander F.], 128 A.D.3d 1364, 1364, 7 N.Y.S.3d 779 ). While the father preserved his related contention that the court erred in accepting the mother's stipulation, we conclude that the father was not prejudiced thereby, inasmuch as the court conducted a full evidentiary hearing on the issues of extraordinary circumstances and the best interests of the children (cf. Matter of
Stiles v. Orshal, 290 A.D.2d 824, 825–826, 736 N.Y.S.2d 535 ).
The father's contention that the court erred in temporarily transferring custody of the subject children without conducting a hearing was rendered moot by the entry of the permanent custody order following a hearing (see Matter of Dench–Layton v. Dench–Layton, 123 A.D.3d 1350, 1351, 998 N.Y.S.2d 538
). The father lacks standing to complain about the assignment of counsel to petitioners (see Matter of
Anderson v. Harris, 73 A.D.3d 456, 458, 900 N.Y.S.2d 269 ). Similarly, the father's contentions concerning the court's alleged errors in proceeding with the hearing in the absence of counsel for Carroll and the father's youngest son fall within the “general prohibition on one litigant raising the legal rights of another” (Society of Plastics Indus. v. County of Suffolk, 77 N.Y.2d 761, 773, 570 N.Y.S.2d 778, 573 N.E.2d 1034 ).
The court properly refused to recuse itself inasmuch as the record does not support the father's allegations that the court was biased against him and had prejudged the merits. Contrary to the father's contention, the court did nothing inappropriate when it encouraged the parties to discuss settlement options (see Martin v. Martin, 74 A.D.2d 419, 423, 427 N.Y.S.2d 1002
).
We conclude that the father received effective assistance of counsel at the hearing, inasmuch as he failed to demonstrate the absence of strategic or other legitimate explanations for the alleged shortcomings of his first attorney (see Matter of Brown v. Gandy, 125 A.D.3d 1389, 1390–1391, 3 N.Y.S.3d 486
). Nor did the father establish any improper conduct on the part of the court or his first attorney in connection with that attorney's motion to withdraw from...
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