State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: July 7, 2016 518675
_________________________________
In the Matter of LEONETTE A.
PETERS,
Appellant,
v
MEMORANDUM AND ORDER
ROBERTA DUGAN et al.,
Respondents,
et al.,
Respondent.
(And Another Related Proceeding.)
_________________________________
Calendar Date: May 31, 2016
Before: Lahtinen, J.P., Egan Jr., Lynch, Devine and Mulvey, JJ.
__________
Linda Richardson, Glens Falls, for appellant.
Michelle I. Rosien, Philmont, for Roberta Dugan and
another, respondents.
D. Alan Wrigley Jr., Cambridge, attorney for the child.
__________
Lahtinen, J.P.
Appeal from an order of the Family Court of Essex County
(Meyer, J.), entered February 27, 2014, which, among other
things, partially dismissed petitioner's application, in a
proceeding pursuant to Family Ct Act article 6, to modify a prior
order of custody.
Petitioner (hereinafter the mother) is the mother of two
daughters, one born in 2001 whose father is Jonathan D. Koerner,
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and another born in 2004 whose father is respondent Hollis Olden
Jr. Neither child had resided with the mother since 2008 or
earlier. At the time these proceedings were commenced in July
2013, both children lived with their maternal grandfather,
respondent James Dugan (hereinafter the grandfather) and maternal
step grandmother, respondent Roberta Dugan. Pursuant to consent
orders, the Dugans (hereinafter collectively referred to as the
grandparents) had legal and physical custody of the older child,
and they had joint legal custody with Olden and primary physical
custody of the younger child. The mother sought to modify the
prior orders to grant her sole legal and physical custody of the
children. Following a hearing, Family Court rendered a written
decision and order in February 2014 finding that the grandparents
had demonstrated extraordinary circumstances. Upon considering
the best interests of the children, the court awarded the
grandparents primary physical custody of both children. Legal
custody of the older child was placed jointly with the
grandfather and the mother, and legal custody of the younger
child was placed jointly with the grandfather, the mother and
Olden.1 The mother was also provided liberal visitation with
both children. The mother appeals.
"It is well settled that a parent has a claim of custody of
his or her child that is superior to that of all others, absent
surrender, abandonment, persistent neglect, unfitness, disruption
of custody over a prolonged period of time or the existence of
other extraordinary circumstances" (Matter of Sweeney v Sweeney,
127 AD3d 1259, 1260 [2015] [citations omitted]; see Matter of
1
In June 2015, while this appeal was pending, a consent
order was entered regarding the younger child that modified the
February 2014 order by awarding Olden primary physical custody
with Olden and the mother having joint legal custody. Although
this subsequent order does not render moot the aspect of the
mother's challenge to Family Court's finding of extraordinary
circumstances regarding the younger child since such a finding
"may have enduring consequences for the parent" (Matter of Brown
v Comer, 136 AD3d 1173, 1174 [2016]), the matter is otherwise
moot as to the younger child (see Matter of Cole v Cole, 118 AD3d
1171, 1172 [2014]).
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Renee TT. v Britney UU., 133 AD3d 1101, 1102 [2015]). "The
burden of showing that such extraordinary circumstances exist
rests with the nonparent challenging the parent's custody, and it
is only when this threshold demonstration has been achieved that
a court may then turn to the question of what custodial
arrangement is in the best interests of the child" (Matter of
Battisti v Battisti, 121 AD3d 1196, 1197 [2014] [citations
omitted]; see Matter of Yandon v Boisvert, 130 AD3d 1257, 1258
[2015]). "The extraordinary circumstances analysis must consider
the cumulative effect of all issues present in a given case,
including, among others, the length of time the child has lived
with the nonparent, the quality of that relationship and the
length of time the parent allowed such custody to continue
without trying to assume the primary parental role" (Matter of
Brown v Comer, 136 AD3d 1173, 1174 [2016] [internal quotation
marks, citations and ellipsis omitted]; see Matter of Elizabeth
SS. v Gracealee SS., 135 AD3d 995, 996 [2016]).
At the time of the hearing, neither child had resided with
the mother for many years. The younger child had been with the
grandparents continuously for over five years (see Domestic
Relations Law § 72 [2]). The older child had lived with them for
about 1½ years and, before that, had resided with an aunt for
over five years. The record established that the grandparents
provided for the children's medical, financial and educational
needs with virtually no involvement of the mother. There was
proof that the mother repeatedly missed her parenting time with
the children as well as scheduled telephone calls. Although the
grandparents had on one occasion used an inappropriate discipline
method with the younger child, they acknowledged their error and
stated that such method would never be used again. The mother
had previously been found to have neglected the younger child due
to extremely unsanitary living conditions in her home and had
lost custody of the older child after the child was left
unsupervised with a risk level I sex offender who molested the
child. There was evidence, found credible by Family Court, that
the children had a deep bond with the grandparents and that,
unlike the mother, the grandparents provided the children with a
safe, stable and nurturing environment. According deference to
Family Court's factual findings and credibility determinations,
its finding of extraordinary circumstances is supported by a
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sound and substantial basis in the record (see Matter of Renee
TT. v Britney UU., 133 AD3d at 1104; Matter of Sweeney v Sweeney,
127 AD3d at 1261).
Next, we consider the mother's argument that Family Court's
custody determination was not in the older child's best
interests. Relevant factors include "maintaining stability in
the child's life, the quality of the respective home
environments, the length of time the present custody arrangement
has been in place and each party's past performance, relative
fitness and ability to provide for and guide the child's
intellectual and emotional development" (Matter of Battisti v
Battisti, 121 AD3d at 1198 [internal quotation marks, brackets
and citations omitted]). The child is now nearly 15 years old
and has not resided with the mother for eight or more years.
Although the mother had recently taken some steps to address the
deficiencies that resulted in her losing custody, many aspects of
her life remained unstable, whereas the grandparents provided an
adequate home where they had lived for many years. Family Court
found that the grandparents gave far superior guidance,
consistency and care for the child. They provided the financial
support for the child without assistance from the mother. They
were better suited to address and facilitate the child's
emotional and intellectual development. Based upon the totality
of the circumstances, Family Court's custody determination is
amply supported by the record and we discern no reason to disturb
it (see Matter of Marcus CC. v Erica BB., 107 AD3d 1243, 1247
[2013], appeal dismissed 22 NY3d 911 [2013]; Matter of Rodriguez
v Delacruz-Swan, 100 AD3d 1286, 1289 [2012]).
Egan Jr., Lynch, Devine and Mulvey, JJ., concur.
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ORDERED that the order is affirmed, without costs.
ENTER:
Robert D. Mayberger
Clerk of the Court