Pamela S. S. v. Charles E.

280 A.D.2d 999, 720 N.Y.S.2d 669, 2001 N.Y. App. Div. LEXIS 1071

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 7, 2001
• Status: Published

Opinion

—Order unanimously affirmed without costs. Memorandum: Family Court properly awarded custody of respondent-father’s (respondent) son to petitioners, respondent’s sister and her husband. “[T]ransfer of custody from a parent to a nonparent requires a showing of extraordinary circumstances justifying the court’s intervention, followed by a showing that an award of custody to the nonparent is in the child’s best interests” (Matter of Sales v Gisendaner, 272 AD2d 997). Petitioners had the burden of establishing that respondent relinquished his superior right to parent his son based on extraordinary circumstances, such as “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). Here, petitioners established persisting neglect and unfitness (see, Matter of Benzon v Sosa, 244 AD2d 659, 662). After hearing testimony from petitioners and respondent, the court found that respondent had engaged in bizarre and violent behavior with his son and others and had left his son at home with no supervision on numerous occasions. The court also found that respondent has a history of mental illness requiring that he be medicated but that respondent’s mental condition made it “less likely” that respondent would take his medication. In addition, the court found that respondent had been resistant to treatment for his mental illness and that he has a history of drug abuse. The hearing court’s credibility determinations should be afforded great deference (see generally, Matter of Coryea v Allen, 262 AD2d 1023, 1024, lv denied 94 NY2d 751), and we conclude that the record supports the court’s determinations that extraordinary circumstances exist and that the award of custody to petitioners is in the best interests of the child (see, Matter of Benzon v Sosa, supra, at 662). (Appeal from Order of Orleans County Family Court, Punch, J. — Custody.) Present— Hurlbutt, J. P., Scudder, Kehoe and Burns, JJ.