Opinion
2018–01877 Docket No. V–20208–16
06-19-2019
In the Matter of Lorna SAMUELS, Appellant, v. Reginald PEGUES, Respondent.
Leighton M. Jackson, New York, NY, for appellant. Nestor Soto, Astoria, NY, for respondent. Geanine Towers, Brooklyn, NY, attorney for the child.
Leighton M. Jackson, New York, NY, for appellant.
Nestor Soto, Astoria, NY, for respondent.
Geanine Towers, Brooklyn, NY, attorney for the child.
ALAN D. SCHEINKMAN, P.J., MARK C. DILLON, JOHN M. LEVENTHAL, ROBERT J. MILLER, JJ.
DECISION & ORDERORDERED that the order is affirmed, without costs or disbursements.
Following the death of the mother, the maternal grandmother filed a petition seeking custody of the subject child, alleging that the father was physically and verbally abusive. During a hearing, the father's ex-girlfriend testified to three instances of alleged physical abuse by the father that occurred in the presence of the child, and the grandmother testified to instances in which the child was either dirty or reported being subject to corporal punishment. These allegations were denied by the father, and the credibility of the allegations was severely undermined by evidence that the allegations of abuse were in contradiction to prior sworn testimony. The Family Court dismissed the maternal grandmother's petition on the ground that she failed to establish the existence of extraordinary circumstance conferring standing upon her to seek custody of the child. The maternal grandmother appeals.
"In a child custody dispute 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 extraordinary circumstances" ( Matter of Bailey v. Carr , 125 A.D.3d 853, 853, 4 N.Y.S.3d 121 ; see Matter of Bennett v. Jeffreys , 40 N.Y.2d 543, 549, 387 N.Y.S.2d 821, 356 N.E.2d 277 ; Matter of Maddox v. Maddox , 141 A.D.3d 529, 35 N.Y.S.3d 264 ). "The burden of proof is on the nonparent to ‘prove the existence of extraordinary circumstances in order to demonstrate standing when seeking custody against a child's parent’ " ( Matter of Maddox v. Maddox , 141 A.D.3d at 529, 35 N.Y.S.3d 264, quoting Matter of Suarez v. Williams , 26 N.Y.3d 440, 448, 23 N.Y.S.3d 617, 44 N.E.3d 915 ). "Without proof of such extraordinary circumstances, an inquiry into the best interests of the child is not triggered" ( Matter of Maddox v. Maddox , 141 A.D.3d at 529, 35 N.Y.S.3d 264 ; see Matter of Bennett v. Jeffreys , 40 N.Y.2d at 548, 387 N.Y.S.2d 821, 356 N.E.2d 277 ). "Whether extraordinary circumstances exist involves the consideration of various factors, 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 biological parent allowed such custody to continue without trying to assume the primary parental role" ( Matter of Thompson v. Bray , 148 A.D.3d 1364, 1365, 51 N.Y.S.3d 635 [internal quotation marks omitted] ).
Here, the Family Court's determination that the grandmother failed to establish the existence of extraordinary circumstances conferring standing to seek custody of the child was supported by a sound and substantial basis in the record and will not be disturbed (see Matter of Bailey v. Carr , 125 A.D.3d at 853, 4 N.Y.S.3d 121 ). This determination was based upon a credibility determination that arose from the contradictory testimony presented by the parties. "Such factual findings, which are predicated on the Family Court's evaluation of the testimony, character, temperament, and sincerity of the parties, are entitled to great deference and may not be set aside where, as here, they have a sound and substantial basis in the record" ( Matter of Rudy v. Mazzetti , 5 A.D.3d 777, 778, 774 N.Y.S.2d 171 ; see Matter of Fishburne v. Teelucksingh , 34 A.D.3d 804, 805, 828 N.Y.S.2d 70 ).
The grandmother's contention that the Family Court should have conducted an in camera interview with the child is, on the facts presented, without merit.
SCHEINKMAN, P.J., DILLON, LEVENTHAL and MILLER, JJ., concur.