Parker v. Tompkins

273 A.D.2d 890, 708 N.Y.S.2d 791, 2000 N.Y. App. Div. LEXIS 6996

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 16, 2000
• Status: Published

Opinion

—Order unanimously affirmed without costs. Memorandum: This custody dispute was initiated by petitioner, the maternal aunt of 13-year-old Andrea T., and was occasioned by the death in October 1998 of Andrea’s mother, with whom Andrea had lived since Andrea’s parents separated in 1989. Respondent, Andrea’s father, has had sporadic contact with Andrea since 1989, despite a separation agreement giving the parents joint custody. Respondent appeals from an order of Family Court that, following separate hearings on the issues of extraordinary circumstances and best interests, awarded custody to petitioner. Contrary to respondent’s contention, petitioner sustained her burden of establishing extraordinary circumstances, which include the prolonged separation of Andrea from respondent between 1991 and 1996; respondent’s infrequent and mostly insignificant contacts with Andrea before 1991 and since 1996; respondent’s failure to pay child support; respondent’s unstable lifestyle and lack of an established household; Andrea’s bond with petitioner, with whom Andrea has lived since her mother became ill, and with her half-brother, with whom Andrea has lived virtually all her life; and the psychological damage likely to be incurred by Andrea in the event that she is separated from her aunt and half-brother (see, Matter of Bennett v Jeffreys, 40 NY2d 543; Matter of Oscarson v Maresca, 232 AD2d 732, 733-734; Matter of Michael G. B. v Angela L. B., 219 AD2d 289, 292-294; Matter of Karen D. v Florence D., 210 AD2d 165, 166). (Appeal from Order of Livingston County Family Court, Cicoria, J. — Custody.) Present — Green, J. P., Wisner, Kehoe and Lawton, JJ.