Esposito v. ShannonEsposito v. Shannon
Ordered that the order is reversed, on the law and the facts, without costs or disbursements, the petition is granted, the cross petition is denied, and the matter is remitted to the Family Court, Suffolk County, for the entry of an order fixing the terms and conditions of the transfer of custody from the maternal aunt to the father, to be accomplished on or before August 24, 2006, and establishing transitional contact with the maternal aunt consistent herewith.
This appeal involves a custody dispute between the child‘s maternal aunt and the child‘s father. The child is now 12 years of age. Shortly after she was born, the mother and father, who were not married, placed her in the care of her maternal grandmother. When the child was two years old, the father, who then had a drug problem, moved to Florida. Although he has had limited contact with the child since then, he has provided child support for several years and has made regular attempts to communicate with her. The father has since overcome his drug problem, established his own business in Florida, married, and set up a household there.
When the child was seven years old, the mother died, and the child remained with her maternal grandmother. When the child was nine years old, the father unsuccessfully petitioned the
“The parent has a ‘right’ to rear its child, and the child has a ‘right’ to be reared by its parent. However, there are exceptions created by extraordinary circumstances, illustratively, surrender, abandonment, persisting neglect, unfitness, and unfortunate or involuntary disruption of custody over an extended period of time” (Matter of Bennett v Jeffreys, 40 NY2d 543, 546 [1976]). A natural parent may not be deprived of custody of his or her child absent such extraordinary circumstances (see Matter of Carosi v Bloom, 225 AD2d 692 [1996]; see also Matter of Koch v Andres, 299 AD2d 411, 411-412 [2002]; Matter of Odums v Metcalf, 276 AD2d 794, 795 [2000]). A nonparent seeking custody of a child against the wishes of a parent has the burden of establishing the existence of such extraordinary circumstances (see Matter of Lynda A.H. v Diane T.O., 243 AD2d 24, 26 [1998]).
In the instant proceeding, the maternal aunt failed to satisfy that burden (see Matter of Nadia Kay R., 125 AD2d 674 [1986]; Matter of Merritt v Way, 85 AD2d 666, 667 [1981], affd 58 NY2d 850 [1983]). The record reflects that the father has paid child support since 1998 and that even during the years when the father did not see the child for extended periods, he called her on an infrequent, but nonetheless regular, basis and sent her cards and gifts. As his personal and financial situation improved, moreover, his contact with the child increased, to the point where, after the mother‘s death, he traveled several times each year from Florida to spend weekends with her in New York. His attempts to bring her to Florida to spend time with his new family were unfortunately impeded by the maternal aunt‘s demand that he pay for her, as well as the maternal grandmother, to accompany the child on such visits. On these facts, it cannot be said that the father has relinquished his superior right to custody, as it must in order for extraordinary circumstances to have been demonstrated (see Matter of Campo v Chapman, 24 AD3d 439 [2005], lv denied 6 NY3d 709 [2006]; Matter of Rudy v Mazzetti, 5 AD3d 777 [2004]). While the child‘s rela-
In a custody contest between parent and nonparent, the question of best interest is not reached absent a showing of such extraordinary circumstances (see Matter of Merritt v Way, supra, 58 NY2d at 852-853). Because the evidence here did not persuasively establish that the father abandoned, surrendered, or otherwise forfeited his parental rights (see Merritt v Way, supra), the inquiry was at an end, and the best interest review engaged in by the Family Court was not warranted (see Matter of Male Infant L., 61 NY2d 420, 427 [1984]). Nevertheless, even if extraordinary circumstances were present here, we would conclude that the best interest of the child requires that custody be awarded to the father.
In determining an issue of custody, “[t]he court must look at the totality of circumstances, and consider, inter alia, ‘the quality of the home environment and the parental guidance the custodial parent provides for the child, the ability of each parent to provide for the child‘s emotional and intellectual development, the financial status and ability of each parent to provide for the child, the relative fitness of the respective parents, and the effect an award of custody to one parent might have on the child‘s relationship with the other parent‘” (Zafran v Zafran, 306 AD2d 468, 469 [2003], quoting Miller v Pipia, 297 AD2d 362, 364 [2002]; see Eschbach v Eschbach, 56 NY2d 167, 171 [1982]). Although there is little doubt that the child has psychologically bonded with her maternal aunt to some degree, “[t]he degree of bonding is simply one factor among the totality of the circumstances considered by Family Court” (Matter of Austin v Herbert, 22 AD3d 897, 899 [2005]; see Matter of Bruce BB. v Debra CC., 307 AD2d 408, 409 [2003]).
Here, the father‘s household consists of himself, his wife, to whom he has been married since 2000, and two of the wife‘s grandchildren. The father is now the owner of a business in the construction industry. Although he has a history of drug addiction and was convicted of driving while intoxicated, for which he was sentenced to three months’ incarceration, it is uncontro-
The maternal aunt‘s household presents a different picture. Both the maternal aunt and the woman with whom she lives have been convicted of serious crimes. The aunt was convicted of the sale of marijuana in 1993, attempted robbery in 1998, attempted petit larceny in 2000, and insurance fraud in 2003. After a period of incarceration as a result of the insurance fraud conviction, she was released on parole, but violated that parole and pleaded guilty to a lesser charge after being accused of loitering with a crack pipe. She was on parole at the time of the custody hearing. In addition, the maternal aunt‘s driver‘s license has been suspended on several occasions and she has been convicted of driving without a license numerous times. The aunt‘s companion has been convicted of grand larceny and driving without a license, and was on probation as a result of the latter conviction at the time of the hearing. The companion‘s brother, who lived in the house for a period of time while the child resided there, had been convicted of grand larceny as well. In addition, the maternal aunt‘s brother, who has had extensive contact with the child, has been convicted of petit larceny, driving with a suspended license, and assault. He was also on probation at the time of the hearing.
While we recognize that the Family Court had the opportunity to hear directly from the parties to this matter, and its determination should therefore be accorded deference on appeal, our “authority in custody matters is as broad as that of the trial court” (Matter of Rosiana C. v Pierre S., 191 AD2d 432, 433 [1993]; see Matter of Louise E.S. v W. Stephen S., 64 NY2d 946, 947 [1985]; Miller v Pipia, supra at 364; Young v Young, 212 AD2d 114, 117 [1995]), as is our responsibility. The presence in the household of persons with records of recent criminal activity is a substantial factor in a best interest analysis that militates against an award of custody (see Matter of Tompkins v Holmes, 27 AD3d 846, 847 [2006]; Matter of Dunaway v Espinoza, 23 AD3d 928, 929 [2005]; Matter of Marie Annette M., 23 AD3d 167, 169 [2005]; Matter of Grayson v Fenton, 13 AD3d 914 [2004]). Here, that factor outweighs the relationship that the child has developed with the maternal aunt. The proper exercise of our responsibility here thus requires that the father‘s petition for custody of the child be granted.
Luciano, J., dissents, and votes to affirm the order with the following memorandum, in which Rivera, J., concurs. The Family Court found that the maternal aunt of the 12-year-old girl who is the subject of this proceeding established that extraordinary circumstances existed which triggered a best-interest determination, and that it was in the best interest of the child for her to remain in the custody of her maternal aunt. The Family Court conducted an in camera interview of the child with the Law Guardian, and heard and saw the witnesses at the hearing. Thus, the Family Court could evaluate the testimony, character, temperament, and sincerity of the parties. Its determination has a sound and substantial basis in the record, and should not be set aside by this Court (see Matter of Rudy v Mazzetti, 5 AD3d 777 [2004]). Further support for the Family Court‘s determination can be found in the recommendation of the Law Guardian that custody of the child remain with the maternal aunt, predicated upon the child‘s “extremely strong preference,” of which the father was aware, as well as the Law Guardian‘s opinion that “there is a significant likelihood, that a transfer of custody to [the child‘s] father would be detrimental to her mental health and well being,” a finding which the Family Court expressly agreed with in its determination (see Young v Young, 212 AD2d 114 [1995] [recommendations of Law Guardian, while not determinative, are entitled to some weight unless contradicted by the record]).
The majority rejects the Family Court‘s finding that the maternal aunt established extraordinary circumstances, opining that it was not established that the father relinquished his
The majority also gives full credence to the father‘s testimony that the grandmother and maternal aunt impeded his attempts to have the child visit him in Florida, without acknowledging the testimony of the maternal aunt and uncle that it was the child who did not want to go to visit the father alone in Florida. It is inappropriate, on this record, to blame the maternal relatives for the father‘s lack of visitation with the child, especially considering that it was the father who elected to move far away from the state where his only child resides, and never petitioned the court for visitation. Further indicative of the father‘s lack of active interest in the child was his testimony that he did not know what the child‘s learning difficulties were, and had never made any effort to find out.
The Family Court‘s finding of extraordinary circumstances has a sound and substantial basis in the record, considering that the father voluntarily surrendered the child to her maternal relatives when she was three months old, moved out of state, had, at best, up to and including the time of the hearing, sporadic contact with her, and never voluntarily paid child support, as well as the undisputed evidence of a strong psychological bond between the child and her maternal aunt, who has been profoundly involved in the child‘s life since birth (see Matter of Wilson v Smith, 24 AD3d 562 [2005]; Matter of Campo v Chapman, 24 AD3d 439 [2005], lv denied 6 NY3d 709 [2006]; Matter of DePaola v Corrales, 303 AD2d 586 [2003]; Matter of Parker v Tompkins, 273 AD2d 890 [2000]; Matter of Michael G.B. v Angela L.B., 219 AD2d 289 [1996]; Matter of Pauline G. v Carolyn F., 187 AD2d 589 [1992]).
In addition, I respectfully disagree with the majority‘s finding that it is in the child‘s best interest for custody to be transferred to the father. As noted in the Family Court‘s decision, the child
At the oral argument of this appeal, the Law Guardian for the child reported to the Court concerning a visit that the child had with the father in Florida for approximately one week after the Family Court‘s decision was rendered and during the pendency of this appeal. He stated that the child told him that while she had a good time, she missed her aunt terribly. Further, she reported that the father spent no time alone with her during the visit, and that she was uncomfortable with the living arrangements and the father‘s wife‘s two grandchildren. She reiterated her resolute preference to live with her aunt.
I cannot dispute that the maternal aunt‘s criminal history is a relevant consideration, and I do not downplay its seriousness. In this case it is the strongest factor militating against finding that an award of custody to her is in the child‘s best interest. I nevertheless believe that this factor must be considered in light of its impact on the child. The undisputed evidence here is that the child is thriving in the maternal aunt‘s custody. She is doing well in school. She has friends and is happy. Despite extensive questioning of the maternal aunt during her testimony about her criminal history, there was simply no evidence adduced which related that history to the aunt‘s parenting, or to the well-being of the child. Moreover, the Family Court, which saw and heard the maternal aunt testify, and was thus in the best position to assess her demeanor and credibility, stated in its decision that “all evidence shows that she has turned her life around.”
It is noted that, as a practical matter, the Family Court‘s deci-