Opinion
02-13-2015
In the Matter of Rickey L. WILSON, Petitioner–Respondent, v. Linda McCRAY, Respondent–Respondent, and Jasmine Jael Gonzalez, formerly known as Felicia A. Vaden, formerly known as Felicia Mitchell, Respondent–Appellant.
Paul B. Watkins, Fairport, for Respondent–Appellant. Charles T. Noce, Conflict Defender, Rochester (Kathleen P. Reardon of Counsel), for Petitioner–Respondent. Timothy P. Donaher, Public Defender, Rochester (Kimberly F. Duguay of Counsel), for Respondent–Respondent. Tanya Conley, Attorney for the Child, Rochester.
Paul B. Watkins, Fairport, for Respondent–Appellant.
Charles T. Noce, Conflict Defender, Rochester (Kathleen P. Reardon of Counsel), for Petitioner–Respondent.
Timothy P. Donaher, Public Defender, Rochester (Kimberly F. Duguay of Counsel), for Respondent–Respondent.
Tanya Conley, Attorney for the Child, Rochester.
PRESENT: PERADOTTO, J.P., CARNI, SCONIERS, and WHALEN, JJ.
Opinion
MEMORANDUM:Jasmine Jael Gonzalez (respondent), a nonparent, appeals from an order that, among other things, awarded sole custody of the subject child to petitioner father. “It is well established that, as between a parent and nonparent, the parent has a superior right to custody that cannot be denied unless the nonparent establishes that the parent has relinquished that right because of ‘surrender, abandonment, persisting neglect, unfitness or other like extraordinary circumstances' ” (Matter of Gary G. v. Roslyn P., 248 A.D.2d 980, 981, 670 N.Y.S.2d 270, quoting Matter of Bennett v. Jeffreys, 40 N.Y.2d 543, 544, 387 N.Y.S.2d 821, 356 N.E.2d 277 ). The burden was on respondent to establish such 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 Wilson v. Smith, 24 A.D.3d 562, 563, 808 N.Y.S.2d 263 ), and the record supports Family Court's determination that she failed to meet that burden.
We reject respondent's contention that the court erred in refusing to adjourn the hearing when she failed to appear. “The grant or denial of a motion for an adjournment for any purpose is a matter resting within the sound discretion of the trial court” (Matter of Steven B., 6 N.Y.3d 888, 889, 817 N.Y.S.2d 599, 850 N.E.2d 646 [internal quotation marks omitted] ). In view of respondent's repeated failures to appear, we perceive no abuse of discretion in the court's refusal to adjourn the hearing (see Matter of Lillian D.L., 29 A.D.3d 583, 584, 813 N.Y.S.2d 784 ). Contrary to respondent's further contention, we conclude that the court properly took judicial notice of its own prior proceedings with respect to the father's paternity (see Matter of Gugino v. Tsvasman, 118 A.D.3d 1341, 1342, 987 N.Y.S.2d 753 ).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.