Matter of Weinberger v. Monroe

Aug 13, 2014
2013-04681
Versions:120 A.D.3d 583
990 N.Y.S.2d 819
p class=“midpage-citation“>583

In a child custody proceeding pursuant to Family Court Act article 6, the maternal grandmother appeals, as limited by her brief, from so much of an order of the Family Court, Orange County (Kiedaisch, J.), entered March 22, 2013, as, after a hearing, granted the father‘s petition to modify a prior order of custody so as to award him sole legal and residential custody of the subject child.

Ordered that the order entered March 22, 2013, is affirmed insofar as appealed from, without costs or disbursements.

In a custody proceeding 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, persisting neglect, unfitness, or other like extraordinary circumstances (see Matter of Male Infant L., 61 NY2d 420, 427 [1984]; Matter of Bennett v Jeffreys, 40 NY2d 543, 544 [1976]; Matter of Noonan v Noonan, 109 AD3d 827, 827-828 [2013]; Matter of DiBenedetto v DiBenedetto, 108 AD3d 531, 532 [2013]). The nonparent has the burden of establishing extraordinary circumstances even where, as here, there is a prior order awarding physical custody of a child to the nonparent that had been issued on the consent of the parties (see Matter of DiBenedetto v DiBenedetto, 108 AD3d at 532; Matter of Wright v Wright, 81 AD3d 740, 741 [2011]). Once the preferred status of the birth parent has been lost by a judicial determination of extraordinary circumstances, the appropriate standard in addressing the possible modification of the prior order is whether there has been a change of circumstances requiring a modification of custody to ensure the best interests of the child (see Matter of Fleischman v Hall, 88 AD3d 1000, 1000 [2011]; Matter of Metcalf v Odums, 35 AD3d 865, 866 [2006]; Matter of Guinta v Doxtator, 20 AD3d 47, 51 [2005]). The best interests of the child are determined by a review of the totality of the circumstances (see Eschbach v Eschbach, 56 NY2d 167, 172 [1982]; Friederwitzer v Friederwitzer, 55 NY2d 89, 95-96 [1982]; Matter of Sparacio v Fitzgerald, 73 AD3d 790, 791 [2010]). In doing so, the court must weigh several factors of varying degrees of importance, including, inter alia, (1) the original placement of the child, (2) the length of that placement, (3) the child‘s desires, (4) the relative fitness of the parties, (5) the quality of the home environment, (6) the guidance given to the child, (7) the parties’ financial status, (8) the parties’ ability to provide for the child‘s emotional and intellectual development, and (9) the willingness of one party to assure meaningful contact between the child and the other party (see Matter of Mingo v Belgrave, 69 AD3d 859, 859-860 [2010]).

On appeal, we accord great deference to the fact-finder‘s opportunity to view the witnesses, hear the testimony, and observe demeanor (see Matter of Noonan v Noonan, 109 AD3d at 828). However, in custody matters, this Court‘s authority is as broad as that of the hearing court, and this Court will not uphold the hearing court‘s determination where it lacks a sound and substantial basis in the record (see id.; Matter of Sparacio v Fitzgerald, 73 AD3d at 791).

Here, the Family Court‘s determination that the maternal grandmother failed to sustain her burden of demonstrating extraordinary circumstances is not supported by a sound and substantial basis in the record (see Domestic Relations Law § 72 [2] [b]; Matter of DiBenedetto v DiBenedetto, 108 AD3d at 532-533; Matter of Ruiz v Travis, 84 AD3d 1242 [2011]; Matter of Carton v Grimm, 51 AD3d 1111, 1113 [2008]; cf. Matter of Hyde v King, 47 AD3d 813, 815 [2008]; Matter of Tolbert v Scott, 42 AD3d 548, 549 [2007]). However, notwithstanding the existence of extraordinary circumstances, the father established a change in circumstances requiring modification of custody to ensure the best interests of the child, and the totality of the circumstances in this case (see Eschbach v Eschbach, 56 NY2d at 172; Friederwitzer v Friederwitzer, 55 NY2d at 95-96) warrants the conclusion that it was in the subject child‘s best interest to award sole legal and residential custody of the child to the father. Thus, the Family Court‘s determination will not be disturbed on appeal. Mastro, J.P., Chambers, Lott and Roman, JJ., concur.

Mastro, J.P., Chambers, Lott and Roman, JJ., concur.

OFFERED BY THE USER: Convert the provided legal document to clean, semantic HTML while preserving all content exactly. I will look at the provided document and determine which opinion to convert. The document starts mid-opinion (page 583). I see: 1. Partial content of an opinion (Matter of Gabriel H.M.). 2. A complete opinion: “In the Matter of Richard Weinberger, Respondent, v Terri Monroe, Appellant.” 3. Another complete opinion: “The People of the State of New York, Respondent, v Denzez Blas, Appellant.” 4. Another complete opinion: “The People of the State of New York, Respondent, v Hipolito Cespedes, Appellant.” (ends mid-sentence). Per the instructions for “Multi-Opinion Documents“: “convert only the MAIN opinion — the one with a complete case caption and full opinion body. Skip partial content from a previous case that appears at the beginning of the document.” I will convert “In the Matter of Richard Weinberger v Terri Monroe“. Metadata extraction: Case Name: In the Matter of Richard Weinberger, Respondent, v Terri Monroe, Appellant. Short Name: Weinberger v. Monroe Citation: [990 NYS2d 819], 583 (the reporter page number) Court: Supreme Court, Appellate Division, Second Department, New York (Inferred from AD3d citations and case structure/format of N.Y. appellate reports). Date: March 22, 2013 (Based on the text “entered March 22, 2013” and the reporter volume context 990 NYS2d). Judges: Dickerson, J.P., Leventhal, Austin and Hinds-Radix, JJ. I will use page markers , , and . I will wrap citations in and . Note on Law Citations: Family Court Act article 6 -> Family Court Act article 6 Domestic Relations Law § 72 [2] [b] -> Domestic Relations Law § 72 [2] [b] Note on Case Citations: Matter of Male Infant L., 61 NY2d 420, 427 [1984] Matter of Bennett v Jeffreys, 40 NY2d 543, 544 [1976] Matter of Noonan v Noonan, 109 AD3d 827, 827-828 [2013] Matter of DiBenedetto v DiBenedetto, 108 AD3d 531, 532 [2013] Matter of DiBenedetto v DiBenedetto, 108 AD3d at 532 Matter of Wright v Wright, 81 AD3d 740, 741 [2011] Matter of Fleischman v Hall, 88 AD3d 1000, 1000 [2011] Matter of Metcalf v Odums, 35 AD3d 865, 866 [2006] Matter of Guinta v Doxtator, 20 AD3d 47, 51 [2005] (OCR has “Matter Guinta v Doxtator” but the text says “Matter of Guinta v Doxtator” in the image) Eschbach v Eschbach, 56 NY2d 167, 172 [1982] Friederwitzer v Friederwitzer, 55 NY2d 89, 95-96 [1982] Matter of Sparacio v Fitzgerald, 73 AD3d 790, 791 [2010] Matter of Mingo v Belgrave, 69 AD3d 859, 859-860 [2010] Matter of Noonan v Noonan, 109 AD3d at 828 Matter of Sparacio v Fitzgerald, 73 AD3d at 791 Matter of DiBenedetto v DiBenedetto, 108 AD3d at 532-533 Matter of Ruiz v Travis, 84 AD3d 1242 [2011] Matter of Carton v Grimm, 51 AD3d 1111, 1113 [2008] Matter of Hyde v King, 47 AD3d 813, 815 [2008] Matter of Tolbert v Scott, 42 AD3d 548, 549 [2007] I will combine paragraphs split by page breaks. Page 584 ends with “warrants the conclusion that it was in the subject child‘s best interest to“. Page 585 starts with “award sole legal and residential custody“. I will join these. Signature block at the end: “Mastro, J.P., Chambers, Lott and Roman, JJ., concur.” (on page 585). Formatting checks: No , straight quotes, rejoin hyphens (none visible at line ends for this opinion). Let‘s begin. Wait, I need to check if the first case is better to do or the Weinberger case. The first text on page 583 is the end of an opinion. The second text “In the Matter of Richard Weinberger...” is a full opinion. The instructions say: “If the document contains multiple opinions (e.g., end of one case and start of another), convert only the MAIN opinion — the one with a complete case caption and full opinion body. Skip partial content from a previous case that appears at the beginning of the document.” The Weinberger case has a complete caption and opinion body. I will convert that one. Wait, looking at the layout, page 583 has the end of one case and the start of Weinberger. Weinberger continues to 584 and finishes on 585. Then Blas starts on 585 and finishes on that page. Then Cespedes starts on 585 and goes to the next page (not provided). I will provide the Weinberger opinion as it is the first complete opinion with a caption. Actually, the instruction says “MAIN opinion“. In case-law reports, they are sequential. I will convert Weinberger. One detail: The court name for Weinberger. The citation [990 NYS2d 819] is for the 2d Dept. I will state the court clearly. One more check on page markers. Weinberger caption is below the line on page 583. Order/Opinion starts: “In a child custody proceeding...” Page 583: [Top partial case] [Weinberger Caption] [Weinberger Body start] Page 584: [Weinberger Body cont.] Page 585: [Weinberger Body end] [Blas Case start/end] [Cespedes Case start] I will only convert Weinberger. Final Check: - midpage-citation: 583 (top right) - Case info: Weinberger - Body text: “In a child custody proceeding...” to “...concur.” - Pagination: 583, 584, 585. Code: 583 Case Information In the Matter of RICHARD WEINBERGER, Respondent, v TERRI MONROE, Appellant [990 NYS2d 819] Supreme Court, Appellate Division, Second Department, New York March 22, 2013 Dickerson, J.P., Leventhal, Austin and Hinds-Radix, JJ. In a child custody proceeding pursuant to Family Court Act article 6, the maternal grandmother appeals, as limited by her brief, from so much of an order of the Family Court, Orange County (Kiedaisch, J.), entered March 22, 2013, as, after a hearing, granted the father‘s petition to modify a prior order of custody so as to award him sole legal and residential custody of the subject child. Ordered that the order entered March 22, 2013, is affirmed insofar as appealed from, without costs or disbursements. In a custody proceeding 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, persisting neglect, unfitness, or other like extraordinary circumstances (see Matter of Male Infant L., 61 NY2d 420, 427 [1984]; Matter of Bennett v Jeffreys, 40 NY2d 543, 544 [1976]; Matter of Noonan v Noonan, 109 AD3d 827, 827-828 [2013]; Matter of DiBenedetto v DiBenedetto, 108 AD3d 531, 532 [2013]). The nonparent has the burden of establishing extraordinary circumstances even where, as here, there is a prior order awarding physical custody of a child to the nonparent that had been issued on the consent of the parties (see Matter of DiBenedetto v DiBenedetto, 108 AD3d at 532; Matter of Wright v Wright, 81 AD3d 740, 741 [2011]). Once the preferred status of the birth parent has been lost by a judicial determination of extraordinary circumstances, the appropriate standard in addressing the possible modification of the prior order is whether there has been a change of circumstances requiring a modification of custody to ensure the best interests of the child (see Matter of Fleischman v Hall, 88 AD3d 1000, 1000 [2011]; Matter of Metcalf v Odums, 35 AD3d 865, 866 [2006]; Matter of Guinta v Doxtator, 20 AD3d 47, 51 [2005]). The best interests of the child are determined by a review of the totality of the circumstances (see Eschbach v Eschbach, 56 NY2d 167, 172 [1982]; Friederwitzer v Friederwitzer, 55 NY2d 89, 95-96 [1982]; Matter of Sparacio v Fitzgerald, 73 AD3d 790, 791 [2010]). In doing so, the court must weigh several factors of varying degrees of importance, including, inter alia, (1) the original placement of the child, (2) the length of that placement, (3) the child‘s desires, (4) the relative fitness of the parties, (5) the quality of the home environment, (6) the guidance given to the child, (7) the parties’ financial status, (8) the parties’ ability to provide for the child‘s emotional and intellectual development, and (9) the willingness of one party to assure meaningful contact between the child and the other party (see Matter of Mingo v Belgrave, 69 AD3d 859, 859-860 [2010]). On appeal, we accord great deference to the fact-finder‘s opportunity to view the witnesses, hear the testimony, and observe demeanor (see Matter of Noonan v Noonan, 109 AD3d at 828). However, in custody matters, this Court‘s authority is as broad as that of the hearing court, and this Court will not uphold the hearing court‘s determination where it lacks a sound and substantial basis in the record (see id.; Matter of Sparacio v Fitzgerald, 73 AD3d at 791). Here, the Family Court‘s determination that the maternal grandmother failed to sustain her burden of demonstrating extraordinary circumstances is not supported by a sound and substantial basis in the record (see Domestic Relations Law § 72 [2] [b]; Matter of DiBenedetto v DiBenedetto, 108 AD3d at 532-533; Matter of Ruiz v Travis, 84 AD3d 1242 [2011]; Matter of Carton v Grimm, 51 AD3d 1111, 1113 [2008]; cf. Matter of Hyde v King, 47 AD3d 813, 815 [2008]; Matter of Tolbert v Scott, 42 AD3d 548, 549 [2007]). However, notwithstanding the existence of extraordinary circumstances, the father established a change in circumstances requiring modification of custody to ensure the best interests of the child, and the totality of the circumstances in this case (see Eschbach v Eschbach, 56 NY2d at 172; Friederwitzer v Friederwitzer, 55 NY2d at 95-96) warrants the conclusion that it was in the subject child‘s best interest to award sole legal and residential custody of the child to the father. Thus, the Family Court‘s determination will not be disturbed on appeal. Mastro, J.P., Chambers, Lott and Roman, JJ., concur. Mastro, J.P., Chambers, Lott and Roman, JJ., concur. Wait, the concurrence line “Mastro, J.P., Chambers, Lott and Roman, JJ., concur.” appears at the end of the text on page 585. One more thing: OCR for Guinta says “Matter Guinta“. Image clearly says “Matter of Guinta“. I will follow the image. Final verification of cites: Matter of Male Infant L., 61 NY2d 420, 427 [1984] Matter of Bennett v Jeffreys, 40 NY2d 543, 544 [1976] Matter of Noonan v Noonan, 109 AD3d 827, 827-828 [2013] Matter of DiBenedetto v DiBenedetto, 108 AD3d 531, 532 [2013] Matter of DiBenedetto v DiBenedetto, 108 AD3d at 532 Matter of Wright v Wright, 81 AD3d 740, 741 [2011] Matter of Fleischman v Hall, 88 AD3d 1000, 1000 [2011] Matter of Metcalf v Odums, 35 AD3d 865, 866 [2006] Matter of Guinta v Doxtator, 20 AD3d 47, 51 [2005] Eschbach v Eschbach, 56 NY2d 167, 172 [1982] Friederwitzer v Friederwitzer, 55 NY2d 89, 95-96 [1982] Matter of Sparacio v Fitzgerald, 73 AD3d 790, 791 [2010] Matter of Mingo v Belgrave, 69 AD3d 859, 859-860 [2010] Matter of Noonan v Noonan, 109 AD3d at 828 Matter of Sparacio v Fitzgerald, 73 AD3d at 791 Matter of DiBenedetto v DiBenedetto, 108 AD3d at 532-533 Matter of Ruiz v Travis, 84 AD3d 1242 [2011] Matter of Carton v Grimm, 51 AD3d 1111, 1113 [2008] Matter of Hyde v King, 47 AD3d 813, 815 [2008] Matter of Tolbert v Scott, 42 AD3d 548, 549 [2007] Eschbach v Eschbach, 56 NY2d at 172 Friederwitzer v Friederwitzer, 55 NY2d at 95-96 Everything looks good. (Note: for “id.” in Sparacio and Noonan, I will infer). For Sparacio type=“short” at 73 AD3d at 791. For Noonan type=“short” at 109 AD3d at 828. For id. after Noonan at 828: Noonan v. Noonan. Ready.