Rosso v. Gerouw-Rosso

• Decision Date: 30 December 2010
• Citation: 79 A.D.3d 1726,914 N.Y.S.2d 829
• Parties: In the Matter of Daniel H. ROSSO, Petitioner-Respondent, v. Andrea M. GEROUW-ROSSO, Respondent-Appellant, and Jason S. Rosso, Respondent. In the Matter of Andrea M. Gerouw-Rosso, Petitioner-Appellant, v. Daniel H. Rosso, Respondent-Respondent.
• Court: New York Supreme Court — Appellate Division

914 N.Y.S.2d 829

79 A.D.3d 1726

In the Matter of Daniel H. ROSSO, Petitioner-Respondent,

v.Andrea M. GEROUW-ROSSO, Respondent-Appellant,andJason S. Rosso, Respondent.

In the Matter of Andrea M. Gerouw-Rosso, Petitioner-Appellant,

v.Daniel H. Rosso, Respondent-Respondent.

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

Dec. 30, 2010.

Linda Gehron, Syracuse, for Respondent-Appellant and Petitioner-Appellant.

Law Offices of Merkel and Merkel, Rochester (David A. Merkel of Counsel), for Petitioner-Respondent and Respondent-Respondent.

Alexandra Burkett, Attorney for the Child, Canandaigua, for Dezmond J.R.

PRESENT: SCUDDER, P.J., CARNI, LINDLEY, PINE, AND GORSKI, JJ.

MEMORANDUM:

Respondent-petitioner mother appeals from an order that, inter alia, denied her petition seeking sole custody of her son, who was born in June 2000. Petitioner-respondent paternal grandfather had been awarded sole custody of the child in 2004 and, prior thereto, the paternal grandmother had custody of the child. The grandfather obtained custody when the grandmother became ill, and the child has not lived with his parents since the age of eight months. Nevertheless, it is axiomatic that, "as between a parent and a nonparent, the parent has a superior right to custody that cannot be denied unless the nonparent establishes that the parent has relinquished that right because of 'surrender, abandonment, persisting neglect, unfitness or other like extraordinary circumstances' " ( Matter of Gary G. v. Roslyn P., 248 A.D.2d 980, 981, 670 N.Y.S.2d 270, quoting Matter of Bennett v. Jeffreys, 40 N.Y.2d 543, 544, 387 N.Y.S.2d 821, 356 N.E.2d 277; see Matter of Howard v. McLoughlin, 64 A.D.3d 1147, 881 N.Y.S.2d 766). Here, Family Court failed to determine whether the grandfather met his burden of establishing the existence of extraordinary circumstances, nor is there any indication in the record whether there was such a prior determination of extraordinary circumstances ( see generally Matter of Guinta v. Doxtator, 20 A.D.3d 47, 54, 794 N.Y.S.2d 516).Nevertheless, the record is sufficient to enable this Court to make that determination in the interest of judicial economy ( see Matter of Michael G.B. v. Angela L.B., 219 A.D.2d 289, 292, 642 N.Y.S.2d 452; cf. Howard, 64 A.D.3d at 1148, 881 N.Y.S.2d 766), and we concludethat the grandfather has established the existence of extraordinary circumstances ( see Matter of Brault v. Smugorzewski, 68 A.D.3d 1819, 890 N.Y.S.2d 866; Michael G.B., 219 A.D.2d at 292-293, 642 N.Y.S.2d 452). Even crediting the testimony of the mother that she has not used illegal drugs since 2005, the record nevertheless establishes that the mother's life has been unstable. The mother has never been steadily employed; she has moved several times; she admitted that she lived with the father while he was using drugs and it is undisputed that a drug dealer once entered the home and struck both parents seeking payment for drugs; the father testified that he believed that the mother had obtained employment with an escort service; and it is undisputed that the mother posed in the nude for a publication. Furthermore, there has been a prolonged separation between the mother and child, and the record establishes that there is a psychological bond between the child and the grandfather.

Having found that there are extraordinary circumstances, we further conclude that the court properly determined that it is in the best interests of the child to remain in the custody of the grandfather ( see generally Gary G., 248 A.D.2d at 981, 670 N.Y.S.2d 270). The record establishes that the grandfather is better able to provide for the child both financially and with respect to his emotional and intellectual development ( see Fox v. Fox, 177 A.D.2d 209, 210, 582 N.Y.S.2d 863). Moreover, the grandfather is more fit to care for the child, and the continuity and stability of the existing custodial arrangement is in the child's best interests ( see id.). We note in addition that the expressed wish of the nine-year-old child to live with his mother is not controlling ( see id. at 211, 582 N.Y.S.2d 863; cf. Matter of Stevenson v. Stevenson, 70 A.D.3d 1515, 1516, 894 N.Y.S.2d 696, lv....