Opinion
2014-06799 (Docket Nos. V6116-13, V-6117-13, V-6118-13, V-6119-13, V-6138-13)
07-15-2015
In the Matter of Yasmin CULBERSON, petitioner-respondent, v. Janet FISHER, appellant. (Proceeding No. 1) In the Matter of Yasmin Culberson, petitioner-respondent, v. Horace Taylor, respondent-respondent. (Proceeding No. 2) In the Matter of Walter Culberson, petitioner-respondent, v. Janet Fisher, appellant. (Proceeding No. 3) In the Matter of Walter Culberson, petitioner-respondent, v. Horace Taylor, respondent-respondent. (Proceeding No. 4) In the Matter of Janet Fisher, appellant, v. Yasmin Culberson, respondent-respondent. (Proceeding No. 5) In the Matter of Janet Fisher, appellant, v. Levi Culberson, respondent. (Proceeding No. 6).
Martin & Colin, P.C., White Plains, N.Y. (Lisa F. Colin ), for appellant. Maria J. Frank, Yorktown Heights, N.Y., for Yasmin Culberson, petitioner-respondent in Proceeding Nos. 1 and 2, and respondent-respondent in Proceeding No. 5. Helene M. Greenberg, Elmsford, N.Y., for Walter Culberson, petitioner-respondent in Proceeding Nos. 3 and 4. John F. Chiaro, Larchmont, N.Y., for Horace Taylor, respondent-respondent in Proceeding Nos. 2 and 4. David J. Peck, Harrison, N.Y., attorney for the child.
Martin & Colin, P.C., White Plains, N.Y. (Lisa F. Colin ), for appellant.
Maria J. Frank, Yorktown Heights, N.Y., for Yasmin Culberson, petitioner-respondent in Proceeding Nos. 1 and 2, and respondent-respondent in Proceeding No. 5.
Helene M. Greenberg, Elmsford, N.Y., for Walter Culberson, petitioner-respondent in Proceeding Nos. 3 and 4.
John F. Chiaro, Larchmont, N.Y., for Horace Taylor, respondent-respondent in Proceeding Nos. 2 and 4.
David J. Peck, Harrison, N.Y., attorney for the child.
Opinion Appeal from an order of the Family Court, Westchester County (Janet Malone, J.), dated June 3, 2014. The order, insofar as appealed from, after a hearing, granted the petitions of the nonparents Yasmin Culberson and Walter Culberson for sole legal and residential custody of the subject child, denied the petition of the mother for sole legal and residential custody of the child, and directed that the mother would have parenting time with the child only in Westchester County, unless otherwise agreed to by the parties.
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 a superior right to custody that cannot be denied unless the nonparent establishes that the parent has relinquished that right due to surrender, abandonment, persistent neglect, unfitness, or other like extraordinary circumstances (see Matter of Bennett v. Jeffreys, 40 N.Y.2d 543, 548, 387 N.Y.S.2d 821, 356 N.E.2d 277 ; Matter of Herrera v. Vallejo, 107 A.D.3d 714, 714, 966 N.Y.S.2d 206 ; Matter of Flores v. Flores, 91 A.D.3d 869, 869–870, 936 N.Y.S.2d 676 ; Matter of Robinson v. McNair, 90 A.D.3d 759, 760, 934 N.Y.S.2d 232 ). The burden is on the nonparent to prove the existence of extraordinary circumstances (see Matter of Darlene T., 28 N.Y.2d 391, 394, 322 N.Y.S.2d 231, 271 N.E.2d 215 ; Matter of Ruiz v. Travis, 84 A.D.3d 1242, 1242, 924 N.Y.S.2d 456 ). Where extraordinary circumstances are found to exist, the court must then consider the best interests of the child in awarding custody (see Matter of Bennett v. Jeffreys, 40 N.Y.2d at 548, 387 N.Y.S.2d 821, 356 N.E.2d 277 ; Matter of Jerrina P. [June H.-Shondell N.P.], 126 A.D.3d 980, 981, 6 N.Y.S.3d 124 ; Matter of Flores v. Flores, 91 A.D.3d at 870, 936 N.Y.S.2d 676 ).
Here, the Family Court properly determined that the nonparent petitioners, Yasmin Culberson and Walter Culberson, sustained their burden of demonstrating extraordinary circumstances based upon, inter alia, the mother's prolonged separation from the subject child and lack of significant involvement in the child's life for a period of time, the mother's failure to contribute to the child's financial support, and the strong emotional bond between the child and the nonparent petitioners (see Matter of Jerrina P. [June H.-Shondell N.P.], 126 A.D.3d at 981, 6 N.Y.S.3d 124 ; Matter of Colon v. Delgado, 106 A.D.3d 414, 415, 963 N.Y.S.2d 663 ; Matter of Robinson v. McNair, 90 A.D.3d at 760, 934 N.Y.S.2d 232 ; Matter of Shemeek D. v. Teresa B., 89 A.D.3d 608, 933 N.Y.S.2d 35 ; Matter of Holmes v. Glover, 68 A.D.3d 868, 869, 890 N.Y.S.2d 629 ; Matter of Barcellos v. Warren–Kidd, 57 A.D.3d 984, 985, 870 N.Y.S.2d 443 ). Moreover, the Family Court's determination that an award of custody to the nonparent petitioners would be in the best interests of the child is supported by a sound and substantial basis in the record (see Matter of DiBenedetto v. DiBenedetto, 108 A.D.3d 531, 532–533, 968 N.Y.S.2d 194 ; Matter of Herrera v. Vallejo, 107 A.D.3d at 714, 966 N.Y.S.2d 206 ; Matter of Flores v. Flores, 91 A.D.3d at 870, 936 N.Y.S.2d 676 ; Matter of Robinson v. McNair, 90 A.D.3d at 761, 934 N.Y.S.2d 232 ; Matter of Jumper v. Hemphill, 75 A.D.3d 507, 508, 904 N.Y.S.2d 501 ; Matter of Barcellos v. Warren–Kidd, 57 A.D.3d at 985, 870 N.Y.S.2d 443 ).
There is no merit to the mother's contention that the Family Court erred in failing to conduct a bifurcated hearing as to the issues of standing and the best interests of the child, as the record demonstrates that the court was aware of and applied the proper legal standards (see generally Matter of Bennett v. Jeffreys, 40 N.Y.2d at 548, 387 N.Y.S.2d 821, 356 N.E.2d 277 ). In addition, the mother failed to preserve for appellate review her contention that she was improperly prevented from calling hearing witnesses. In any event, the record does not show that the court improperly prevented the mother from calling any witnesses (see generally Matter of Tayleese M.C [Tunisha H.], 127 A.D.3d 1077, 7 N.Y.S.3d 464 ).
In light of, inter alia, the fact that the mother relocated to Florida during the custody hearing without presenting evidence as to her living situation, employment, or plans to remain in Florida, as well as the in camera interview with the child, the Family Court did not improvidently exercise its discretion in directing that the mother's parenting time is to occur only in Westchester County, unless otherwise agreed to by the parties (see Matter of Mera v. Rodriguez, 73 A.D.3d 1069, 1070, 899 N.Y.S.2d 893 ; see also Matter of Mohabir v. Singh, 78 A.D.3d 1056, 1057, 910 N.Y.S.2d 917 ).
DILLON, J.P., CHAMBERS, AUSTIN and SGROI, JJ., concur.