Esposito v. Shannon

32 A.D.3d 471, 823 N.Y.S.2d 159
CourtAppellate Division of the Supreme Court of the State of New York
DecidedAugust 15, 2006
StatusPublished
Cited by25 cases

This text of 32 A.D.3d 471 (Esposito v. Shannon) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Esposito v. Shannon, 32 A.D.3d 471, 823 N.Y.S.2d 159 (N.Y. Ct. App. 2006).

Opinions

In a child custody proceeding pursuant to Family Court Act article 6, the father appeals from an order of the Family Court, Suffolk County (Margolin, Ct. Atty. Ref.), dated February 3, 2006, which, after a hearing, denied his petition and granted the maternal aunt’s cross petition for custody of the subject child.

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 [472]*472Family Court for joint custody with the maternal grandmother. The maternal grandmother died when the child was 11 years old, and the child took up residence with her maternal aunt, the maternal aunt’s girlfriend, and the girlfriend’s two daughters, who were a few years older than the child. The father again petitioned the Family Court, this time for sole custody, and the maternal aunt cross-petitioned for custody. After a hearing, the Family Court denied the father’s petition, granted the cross petition, and awarded custody of the child to the maternal aunt. We reverse, and, inter alia, grant the petition.

“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[473]*473tionship with the maternal aunt is significant, extraordinary circumstances are not established merely by showing that the child has bonded psychologically with the nonparent (see Matter of Cambridge v Cambridge, 13 AD3d 443, 444 [2004]; Matter of Lynda A.H. v Diane T.O., supra at 26-27; Matter of Burghdurf v Rogers, 233 AD2d 713, 715 [1996]; Matter of Gray v Chambers, 222 AD2d 753, 754 [1995]; Matter of Michael G.B. v Angela L.B., 219 AD2d 289, 292 [1996]; Matter of Bisignano v Walz, 164 AD2d 317, 320 [1990]; cf. Matter of Michael Paul T. v Thomas R., 124 AD2d 970 [1986]).

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[474]*474verted that he has received treatment for his drug and alcohol problems and has no criminal record for the past five or six years. The wife is a licensed practical nurse and the Family Court found that she “would obviously be a caring and effective parent figure.” There is no evidence that she has ever been convicted of a crime.

The maternal aunt’s household presents a different picture.

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Bluebook (online)
32 A.D.3d 471, 823 N.Y.S.2d 159, Counsel Stack Legal Research, https://law.counselstack.com/opinion/esposito-v-shannon-nyappdiv-2006.