Jordan v. Cumberbatch

237 A.D.2d 522, 656 N.Y.S.2d 906, 1997 N.Y. App. Div. LEXIS 2842

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 24, 1997
• Status: Published

Opinion

In a child custody proceeding pursuant to Family Court Act article 6 to modify a custody order of a Virginia court, the petitioner mother appeals from an order of the Family Court, Queens County (Freeman, J.), dated March 8,1995, which, after a hearing, dismissed the petition.

Ordered that the order is affirmed, without costs or disbursements.

The hearing record supports the Family Court’s determination that there were "extraordinary circumstances” to rebut the presumption in favor of the natural parent and turn the inquiry to the best interests of the child (see, Matter of Bennett v Jeffreys, 40 NY2d 543). While the Family Court and the parties may have misapprehended the burden of proof in the "extraordinary circumstances” phase of the hearing (see, Matter of Bennett v Jeffreys, supra; Matter of Commissioner of Social Servs. of City of N. Y. [Tyrique P.], 216 AD2d 387), the record is sufficient for this Court to make its own determination on that issue (see, Matter of Louise E. S. v W. Stephen S., 64 NY2d 946; Matter of Michael G. B. v Angela L. B., 219 AD2d 289).

Contrary to the mother’s further contention, the record also supports the court’s determination that the child’s best interests require continued custody with the respondent and visitation with the mother (see, Eschbach v Eschbach, 56 NY2d 167; Klat v Klat, 176 AD2d 922). Therefore, the mother’s petition to modify the order of custody was properly denied. Sullivan, J. P., Santucci, Friedmann and McGinity, JJ., concur.