Opinion
2011-12-6
In the Matter of Reynold BISHUNATH, appellant, v. Junkumare BISHUNATH, respondent.
Christopher J. Robles, Brooklyn, N.Y., for appellant. Edward E. Caesar, Brooklyn, N.Y., for respondent.
Christopher J. Robles, Brooklyn, N.Y., for appellant. Edward E. Caesar, Brooklyn, N.Y., for respondent.
Nestor Soto, Astoria, N.Y. (John C. Macklin of counsel), attorney for the child.
In a custody and visitation proceeding pursuant to Family Court Act article 6, the petitioner uncle appeals, as limited by his brief, from so much of an order of the Family Court, Queens County (McGrady, Ct. Atty. Ref.), dated February 25, 2010, as, upon a finding that the petitioner established the existence of extraordinary circumstances, made after a hearing on the issue of extraordinary circumstances, and, upon a hearing on the issues of the best interests of the subject child, denied his petition for custody and awarded custody of the subject child to the mother, with visitation to him.
ORDERED that the order is affirmed insofar as appealed from, without costs or disbursements.
“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 Ruiz v. Travis, 84 A.D.3d 1242, 1242, 924 N.Y.S.2d 456 [internal quotation marks omitted]; see Matter of Holmes v. Glover, 68 A.D.3d 868, 890 N.Y.S.2d 629; Matter of Wilson v. Smith, 24 A.D.3d 562, 563, 808 N.Y.S.2d 263). Where, as here, a nonparent succeeds in establishing the existence of extraordinary circumstances conferring standing to seek custody, the court must look, as in any custody dispute, to the best interest of the child ( see Matter of Holmes v. Glover, 68 A.D.3d at 869, 890 N.Y.S.2d 629; Matter of K.F.T. v. D.P.G., 54 A.D.3d 1044, 1045, 865 N.Y.S.2d 253; Matter of Wilson v. Smith, 24 A.D.3d at 563, 808 N.Y.S.2d 263; see also Eschbach v. Eschbach, 56 N.Y.2d 167, 171, 451 N.Y.S.2d 658, 436 N.E.2d 1260; Friederwitzer v. Friederwitzer, 55 N.Y.2d 89, 95, 447 N.Y.S.2d 893, 432 N.E.2d 765; Matter of Desroches v. Desroches, 54 A.D.3d 1035, 1036, 864 N.Y.S.2d 551).
Here, although the petitioner uncle established extraordinary circumstances, the Family Court's determination that the child's best interest would be served by returning custody to the mother had a sound and substantial basis in the record and was supported by the evidence developed at a full evidentiary hearing, and we discern no basis to disturb it ( see generally Matter of Nell v. Nell, 87 A.D.3d 541, 542, 928 N.Y.S.2d 312; Matter of Sajid v. Berrios–Sajid, 73 A.D.3d 1186, 1186–1187, 902 N.Y.S.2d 146; Matter of K.F.T. v. D.P.G., 54 A.D.3d at 1045, 865 N.Y.S.2d 253; Matter of Desroches v. Desroches, 54 A.D.3d at 1036, 864 N.Y.S.2d 551; Matter of Rodriguez v. Irizarry, 29 A.D.3d 704, 814 N.Y.S.2d 273).