Matter of Carol H. v. Shewanna H.

Appellate Division of the Supreme Court of New York

Matter of Carol H. v. Shewanna H.

128 A.D.3d 490, 9 N.Y.S.3d 237

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMay 14, 2015

Docket15093

StatusPublished

This text of 128 A.D.3d 490 (Matter of Carol H. v. Shewanna H.) 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

Matter of Carol H. v. Shewanna H., 128 A.D.3d 490, 9 N.Y.S.3d 237 (N.Y. Ct. App. 2015).

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Opinion

Order, Family Court, New York County (Susan M. Doherty, Ref.), entered on or about May 27, 2014, which dismissed the petition by the subject children’s maternal grandmother for custody of the children, and denied petitioner’s motion for leave to amend the petition, unanimously affirmed, without costs.

Petitioner, who has no relationship with the children and has not seen them for more than four years, failed to meet her heavy burden of establishing “extraordinary circumstances” in support of her custody application (see Matter of Bennett v Jeffreys, 40 NY2d 543, 544 [1976]; Matter of Jumper v Hemphill, 75 AD3d 507 [2d Dept 2010], lv denied 15 NY3d 712 [2010]). The petition fails to allege facts sufficient to make out extraordinary circumstances; thus, Family Court was not required to hold a hearing on the issue (Matter of Stephon M. [William W.], 84 AD3d 497 [1st Dept 2011], lv denied 17 NY3d 707 [2011]).

The proposed amended petition does not cure the defects of the petition. Athough it alleges that petitioner witnessed evidence of the unfitness of the children’s mother “years ago,” it does not allege that she took steps to gain custody at that time or even that she tried to see the children on a regular basis. Concur — Tom, J.P., Sweeny, Andrias, Moskowitz and Gische, JJ.

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Order, Family Court, New York County (Susan M. Doherty, Ref.), entered on or about May 27, 2014, which dismissed the petition by the subject children’s maternal grandmother for custody of the children, and denied petitioner’s motion for leave to amend the petition, unanimously affirmed, without costs.

Petitioner, who has no relationship with the children and has not seen them for more than four years, failed to meet her heavy burden of establishing “extraordinary circumstances” in support of her custody application (see Matter of Bennett v Jeffreys, 40 NY2d 543, 544 [1976]; Matter of Jumper v Hemphill, 75 AD3d 507 [2d Dept 2010], lv denied 15 NY3d 712 [2010]). The petition fails to allege facts sufficient to make out extraordinary circumstances; thus, Family Court was not required to hold a hearing on the issue (Matter of Stephon M. [William W.], 84 AD3d 497 [1st Dept 2011], lv denied 17 NY3d 707 [2011]).

The proposed amended petition does not cure the defects of the petition. Athough it alleges that petitioner witnessed evidence of the unfitness of the children’s mother “years ago,” it does not allege that she took steps to gain custody at that time or even that she tried to see the children on a regular basis. Concur — Tom, J.P., Sweeny, Andrias, Moskowitz and Gische, JJ.

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Bluebook (online)

128 A.D.3d 490, 9 N.Y.S.3d 237, Counsel Stack Legal Research, https://law.counselstack.com/opinion/matter-of-carol-h-v-shewanna-h-nyappdiv-2015.

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