Ruiz v. Travis
| Decision Date | 24 May 2011 |
| Docket Number | 2010-02526,Docket No. V-01720-05/08G,V-02337-05/08G |
| Parties | In the Matter of Colleen Ruiz, appellant, v. Charlotte Travis, et al., respondents. |
| Court | New York Supreme Court — Appellate Division |
PETER B. SKELOS, J.P.
THOMAS A. DICKERSON
L. PRISCILLA HALL
David M. Rosoff, White Plains, N.Y., for appellant.
Steven N. Ranellone, White Plains, N.Y., for respondent Charlotte Travis.
Daniel L. Pagano, Yorktown Heights, N.Y., attorney for the child.
In a custody and visitation proceeding pursuant to Family Court Act article 6, the mother appeals, as limited by her brief, from so much of an order of the Family Court, Westchester County (Edlitz, J.), entered February 17, 2010, as, upon a hearing on the issue of extraordinary circumstances, after which it was found that the paternal grandmother established the existence of extraordinary circumstances, and, upon a hearing on the issues of the best interests of the subject child and change of circumstances, in effect, granted the motion of the paternal grandmother, the father, and the attorney for the child, made at the close of the mother's case, to dismiss the mother's petition to modify an order of the same court dated February 25, 2008, entered upon the consent of the parties, inter alia, awarding the grandmother and the mother joint legal custody of the subject child with sole physical custody to the grandmother, so as to award the mother sole physical and legal custody of the child, and dismissed the petition.
ORDERED that the order is modified, on the law, (1) by deleting the provision thereof, in effect, granting the motion of the paternal grandmother, the father, and the attorney for the child, made at the close of the mother's case, to dismiss the mother's petition, and substituting therefor a provision denying the motion, and (2) by deleting the provision dismissing the petition; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements, the mother's petition is reinstated, and the matter is remitted to the Family Court, Westchester County, for further proceedings consistent herewith.
In a custody proceeding 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, persisting neglect, unfitness, or other like extraordinary circumstances" (Matter of Souza v Bennett, 81 AD3d 836, 836 [internal quotation marks omitted], quoting Matter of Fishburne v Teelucksingh, 34 AD3d 804, 804; see Matter of Bennett v Jeffreys, 40 NY2d 543, 544). The nonparent has the burden of establishing the existence of extraordinary circumstances "even when there is a prior order awarding custody of a child to [the] nonparent which was issued on the consent of the parties" (Matter of Wright v Wright, 81 AD3d 740, 740; see Matter of Fishburne v Teelucksingh, 34 AD3d 804).
Contrary to the mother's contention, the Family Court's finding, after a hearing, that the paternal grandmother demonstrated the existence of extraordinary circumstances has a sound and substantial basis in the record (see Domestic Relations Law § 72[2][b]; Matter of Wright v Wright, 81 AD3d 740; Matter of Gilchrest v Patterson, 55 AD3d 833; Matter of Carton v Grimm, 51 AD3d1111, 1113). As the paternal grandmother demonstrated that she had supported and cared for the child since the child's birth, without significant contribution from the mother during the first two years of the...
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