SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
1382
CAF 11-00306
PRESENT: SCUDDER, P.J., CENTRA, CARNI, LINDLEY, AND MARTOCHE, JJ.
IN THE MATTER OF RICHARD A. VAZQUEZ,
PETITIONER-APPELLANT,
V MEMORANDUM AND ORDER
ALLISON M. VELEZ, RESPONDENT-RESPONDENT.
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IN THE MATTER OF RICHARD A. VAZQUEZ,
PETITIONER-APPELLANT,
V
ALLISON M. VELEZ, RESPONDENT-RESPONDENT.
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IN THE MATTER OF EVELYN SANTIAGO,
PETITIONER-RESPONDENT,
V
RICHARD A. VAZQUEZ, RESPONDENT-APPELLANT.
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IN THE MATTER OF RICHARD A. VAZQUEZ,
PETITIONER-APPELLANT,
V
ERIE COUNTY DEPARTMENT OF SOCIAL SERVICES,
RESPONDENT-RESPONDENT.
TIMOTHY R. LOVALLO, BUFFALO, FOR PETITIONER-APPELLANT AND RESPONDENT-
APPELLANT.
LEGAL SERVICES FOR THE ELDERLY, DISABLED OR DISADVANTAGED OF WNY,
BUFFALO (DAVID A. SHAPIRO OF COUNSEL), FOR PETITIONER-RESPONDENT.
DAVID C. SCHOPP, ATTORNEY FOR THE CHILD, THE LEGAL AID BUREAU OF
BUFFALO, INC., BUFFALO (CHARLES D. HALVORSEN OF COUNSEL), FOR JULISSA
V.
Appeal from an order of the Family Court, Erie County (Patricia
A. Maxwell, J.), entered February 8, 2011 in a proceeding pursuant to
Family Court Act article 6. The order, among other things, granted
joint custody of the subject child to Evelyn Santiago and Richard A.
Vazquez.
-2- 1382
CAF 11-00306
It is hereby ORDERED that the order so appealed from is
unanimously reversed on the law without costs and the matter is
remitted to Family Court, Erie County, for further proceedings in
accordance with the following Memorandum: Petitioner-respondent
father appeals from an order granting physical custody of his child to
petitioner maternal grandmother (grandmother), and joint custody to
the father and grandmother. It is well established that a parent has
a superior right to custody to that of a nonparent (see generally
Matter of Bennett v Jeffreys, 40 NY2d 543, 546-548). Specifically,
“[t]he State may not deprive a parent of the custody of a child absent
surrender, abandonment, persisting neglect, unfitness or other like
extraordinary circumstances” (id. at 544). Here, Family Court erred
in failing to determine whether extraordinary circumstances exist
before proceeding to determine that it is in the best interests of the
child to grant physical custody to the grandmother and joint custody
to the father and grandmother (see id. at 548). Because “the record
is insufficient to enable us to make our own determination with
respect to whether extraordinary circumstances exist” (Matter of
Howard v McLoughlin, 64 AD3d 1147, 1148), we remit the matter to
Family Court to make that determination, upon affording the parties
the opportunity to submit additional evidence if they be so advised.
In the event that the court determines that extraordinary
circumstances exist, the court must then consider the best interests
of the child in making a custody determination (see Matter of McArdle
v McArdle, 1 AD3d 822, 823).
Entered: December 23, 2011 Frances E. Cafarell
Clerk of the Court