Opinion
984 CAF 18–00723
11-08-2019
In the Matter of Heather SHELLEY, Petitioner–Respondent, v. Vincent TESTA, Respondent–Respondent, and Lisa Bell, Respondent–Appellant.
D.J. & J.A. CIRANDO, PLLC, SYRACUSE (REBECCA L. KONST OF COUNSEL), FOR RESPONDENT–APPELLANT. WARD GREENBERG HELLER & REIDY LLP, ROCHESTER (CHRISTOPHER J. LATTUCA OF COUNSEL), FOR PETITIONER–RESPONDENT. BETH A. LOCKHART, NORTH SYRACUSE, ATTORNEY FOR THE CHILD.
D.J. & J.A. CIRANDO, PLLC, SYRACUSE (REBECCA L. KONST OF COUNSEL), FOR RESPONDENT–APPELLANT.
WARD GREENBERG HELLER & REIDY LLP, ROCHESTER (CHRISTOPHER J. LATTUCA OF COUNSEL), FOR PETITIONER–RESPONDENT.
BETH A. LOCKHART, NORTH SYRACUSE, ATTORNEY FOR THE CHILD.
PRESENT: WHALEN, P.J., LINDLEY, DEJOSEPH, NEMOYER, AND TROUTMAN, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: Respondents are the biological parents of a child, and petitioner is the father's ex-girlfriend. Petitioner commenced this proceeding seeking custody of respondents' child. Family Court granted the petition and awarded the mother supervised visitation. The mother appeals. We affirm.
Contrary to the mother's contention, petitioner established the "extraordinary circumstances" necessary to warrant an inquiry into whether an award of custody to a nonparent was in the child's best interests ( Matter of Howard v. McLoughlin, 64 A.D.3d 1147, 1147, 881 N.Y.S.2d 766 [4th Dept. 2009] ; see also Matter of Debra SS. v. Brian TT., 163 A.D.3d 1199, 1200–1202, 81 N.Y.S.3d 621 [3d Dept. 2018] ; Matter of Komenda v. Dininny, 115 A.D.3d 1349, 1350, 983 N.Y.S.2d 188 [4th Dept. 2014] ; Matter of Barnes v. Evans, 79 A.D.3d 1723, 1723–1724, 914 N.Y.S.2d 487 [4th Dept. 2010], lv denied 16 N.Y.3d 711, 2011 WL 1643301 [2011] ). Contrary to the mother's further contention, the court properly determined that the child's best interests were served by awarding petitioner custody (see Matter of Evelyn EE. v. Ayesha FF., 143 A.D.3d 1120, 1128, 40 N.Y.S.3d 212 [3d Dept. 2016], lv denied 28 N.Y.3d 913, 2017 WL 524718 [2017] ; Matter of Wilson v. Hayward, 128 A.D.3d 1475, 1477, 8 N.Y.S.3d 803 [4th Dept. 2015], lv denied 26 N.Y.3d 909, 2015 WL 6143567 [2015] ; see also Matter of Tennant v. Philpot, 77 A.D.3d 1086, 1089, 909 N.Y.S.2d 225 [3d Dept. 2010] ). Finally, although the better practice here would have been to set a specific and definitive schedule for the supervised visitation between the mother and child (see Matter of Edmonds v. Lewis, 175 A.D.3d 1040, 1043, 108 N.Y.S.3d 611 [4th Dept. 2019] ), we decline to remit the matter to Family Court to fashion such a schedule given the unique circumstances of this case, which include the mother's abandonment of a subsequent petition and her failure to avail herself of the visitation afforded her.