Opinion
2011-12-13
In the Matter of Natalie ROBINSON, petitioner-respondent, v. Ayesha McNAIR, appellant,Leonard Robinson, respondent. (Proceeding No. 1).In the Matter of Ayesha McNair, petitioner-appellant, v. Natalie Robinson, respondent. (Proceeding No. 2).(and a related proceeding).
Zvi Ostrin, New York, N.Y., for appellant. Karen P. Simmons, Brooklyn, N.Y. (Barbara H. Dildine of counsel), attorney for the children.
Zvi Ostrin, New York, N.Y., for appellant. Karen P. Simmons, Brooklyn, N.Y. (Barbara H. Dildine of counsel), attorney for the children.
MARK C. DILLON, J.P., RANDALL T. ENG, PLUMMER E. LOTT, and LEONARD B. AUSTIN, JJ.
In related child custody and visitation proceedings pursuant to Family Court Act article 6, the mother appeals from an order of the Family Court, Kings County (Krauss, J.), dated July 20, 2010, which, after a hearing, granted the petition of the subject children's aunt, Natalie Robinson, for sole custody of the children and denied the mother's petitions for custody and visitation.
ORDERED that the order is affirmed, without costs or disbursements.
From the time of their respective births, the subject children, who were born in February 1997, and April 1998, resided in the house of their paternal aunt, Natalie Robinson (hereinafter Robinson), with their mother, who was their primary caregiver. At some point thereafter, the mother and the children moved out of Robinson's house. Since 2003, however, the children, without their mother, have continuously lived with Robinson. In March 2006, Robinson filed a petition in Family Court seeking custody of both children, and she was awarded temporary custody on July 31, 2006. Thereafter, the mother filed petitions for custody and visitation. After a lengthy hearing, the Family Court granted Robinson's petition for sole custody of the children and denied the mother's petitions. We affirm.
“As 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, persistent neglect, unfitness, or similar extraordinary circumstances” ( Matter of Gilchrest v. Patterson, 55 A.D.3d 833, 833, 866 N.Y.S.2d 296; 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 Brown v. Zuzierla, 73 A.D.3d 765, 900 N.Y.S.2d 414). Accordingly, a nonparent who seeks custody of a child against the wishes of the child's parent has the initial burden of establishing that “extraordinary circumstances” exist ( Matter of Ruiz v. Travis, 84 A.D.3d 1242, 1242, 924 N.Y.S.2d 456; see Matter of Fishburne v. Teelucksingh, 34 A.D.3d 804, 828 N.Y.S.2d 70; Matter of General v. General, 31 A.D.3d 551, 552, 820 N.Y.S.2d 73).
Here, Robinson satisfied her burden of establishing extraordinary circumstances based on, inter alia, her having amply provided for the children's physical, emotional, and financial needs for an extended period of time, the mother's use of excessive corporal punishment to discipline the children, the harmful psychological and emotional effects of such punishment on the children, the mother's poor impulse control, and the mother's failure to contribute to the children's financial support ( see Matter of Ruiz v. Travis, 84 A.D.3d 1242, 924 N.Y.S.2d 456; Matter of Wright v. Wright, 81 A.D.3d 740, 916 N.Y.S.2d 203; Matter of Jumper v. Hemphill, 75 A.D.3d 507, 904 N.Y.S.2d 501; Matter of Drake v. Carroll, 73 A.D.3d 1172, 900 N.Y.S.2d 897; Matter of Barcellos v. Warren–Kidd, 57 A.D.3d 984, 870 N.Y.S.2d 443; cf. Matter of Garcia v. Ramos, 79 A.D.3d 872, 873, 912 N.Y.S.2d 660). In addition, both children expressed their wishes to continue their present living situation without any contact from the mother, including supervised contact ( see Matter of Mera v. Rodriguez, 73 A.D.3d 1069, 1070, 899 N.Y.S.2d 893; Matter of Samuel S. v. Dayawathie R., 63 A.D.3d 746, 747, 880 N.Y.S.2d 685; Matter of O'Connor v. Dyer, 18 A.D.3d 757, 757–758, 795 N.Y.S.2d 686; Matter of Kocowicz v. Kocowicz, 306 A.D.2d 285, 285–286, 760 N.Y.S.2d 334).
Further, the Family Court properly determined that the children thrived in Robinson's care and that their best interests would be served by awarding custody to her, which was supported by a sound and substantial basis in the record ( see Matter of Wright v. Wright, 81 A.D.3d at 741, 916 N.Y.S.2d 203; Matter of Jumper v. Hemphill, 75 A.D.3d at 508, 904 N.Y.S.2d 501; Matter of Drake v. Carroll, 73 A.D.3d 1172, 900 N.Y.S.2d 897; Matter of Samuel S. v. Dayawathie R., 63 A.D.3d at 747, 880 N.Y.S.2d 685; Matter of Barcellos v. Warren–Kidd, 57 A.D.3d 984, 870 N.Y.S.2d 443), and was consistent with the position of the attorney for the children and the recommendation of the forensic evaluator ( see Matter of Cockrell v. Burke, 50 A.D.3d 895, 856 N.Y.S.2d 212; Matter of Donohue v. Donohue, 44 A.D.3d 1042, 844 N.Y.S.2d 430).
“[A] noncustodial parent should have reasonable rights of visitation, and the denial of those rights to a natural parent is a drastic remedy which should only be invoked when there is substantial evidence that visitation would be detrimental to the child” ( Matter of Mera v. Rodriguez, 73 A.D.3d at 1069, 899 N.Y.S.2d 893 [internal quotation marks omitted] ). The determination of visitation is entrusted to the sound discretion of the trial court and should not be disturbed on appeal unless the determination lacks a substantial evidentiary basis in the record ( see Matter of Ciccone v. Ciccone, 74 A.D.3d 1337, 1338, 904 N.Y.S.2d 203; Matter of Mera v. Rodriguez, 73 A.D.3d at 1070, 899 N.Y.S.2d 893; Matter of Barcellos v. Warren–Kidd, 57 A.D.3d at 985, 870 N.Y.S.2d 443; Matter of Kachelhofer v. Wasiak, 10 A.D.3d 366, 780 N.Y.S.2d 290).
The Family Court's determination that granting the mother even supervised visitation at this time would be contrary to the children's best interests was supported by a sound and substantial basis in the record ( see Matter of McLean v. Simpson, 82 A.D.3d 1101, 1102, 918 N.Y.S.2d 896; Matter of Mera v. Rodriguez, 73 A.D.3d at 1070, 899 N.Y.S.2d 893; Matter of Samuel S. v. Dayawathie R., 63 A.D.3d 746, 747, 880 N.Y.S.2d 685).