Turning to the question of physical custody, the mother initially contends that the grandparents lacked standing to seek physical custody in their petition because they failed to satisfy their heavy burden of establishing the presence of extraordinary circumstances.
A parent has a claim of custody to his or her child that is superior to all other persons, unless a nonparent establishes that there has been surrender, abandonment, persistent neglect, unfitness, an extended disruption of custody or other like extraordinary circumstances. That said, the parent in question may be supplanted where he or she engages in gross misconduct or other behavior evincing an utter indifference and irresponsibility relative to the parental role.
Examples of behaviors that may, in the aggregate, rise to the level of extraordinary circumstances include allowing the child to live in squalor, failing to address serious substance abuse or mental health issues, instability in the parent’s housing or employment situation, the questionable use of corporal punishment as a means of discipline and other similar behaviors that reflect the parent’s overall pattern of placing his or her own interests and personal relationships ahead of the child.
Once extraordinary circumstances have been established, Family Court may then proceed to the issue of whether an award of custody to the nonparent, rather than the parent, is in the child’s best interests.
The record reflects that the child was not subject to surrender, abandonment or persistent neglect nor is the mother unfit. Although the father was the subject of an indicated report relative to the incident when he fell asleep in his vehicle with drug paraphernalia near the child, a finding of neglect was not indicated as to the mother. Moreover, this was an isolated incident and not part of a pattern of persistent neglect.
Although there was evidence that the father has a history of drug abuse and criminal convictions, the mother has neither. There was no evidence that the child was at risk of being harmed while in the mother’s care; instead, the record demonstrates that the mother provided appropriate shelter, clothing, food and medical attention to the child. Additionally, the mother did not allow the father to have contact with the child in accordance with Family Court’s orders.
As Family Court found that the grandparents did not meet their burden on extraordinary circumstances as to the mother, the court erred in engaging in a best interests analysis and, instead, the custody petition should have been dismissed.
Turning to the visitation petition, the mother contends that, as with their petition for custody, the grandparents lack standing to seek visitation. Pursuant to Domestic Relations Law § 72, grandparents may seek visitation with their grandchild. This showing can be made by establishing a sufficient existing relationship with their grandchild, or in cases where that has been frustrated by the parents, a sufficient effort to establish one, so that the court perceives it as one deserving the court’s intervention. Notably, essential components of the standing inquiry are the nature and extent of the grandparent-grandchild relationship and the nature and basis of the parent’s objection to visitation.
If standing is established, the court will then consider whether such visitation is in the child’s best interests, which requires evaluation of a variety of factors, including the nature and extent of the existing relationship between the grandparents and child, the basis and reasonableness of the parent’s objections, the grandparents’ nurturing skills and attitude toward the parent, the attorney for the child’s assessment and the child’s wishes.
The hearing testimony established that the grandparents, the mother and the child resided together in Massachusetts from August 2015 to December 2015. In December 2015, the mother and the child moved to a nearby apartment to live with the father following his release from prison. Between December 2015 and April 2017, the grandparents cared for the child several days every week.
Additionally, the parties gathered together for holidays, birthdays and other family events. Following an argument in April 2017, the mother and the father moved from Massachusetts to New York with the child, and the grandparents did not have contact with the child until February 2018.
However, the grandparents attempted to contact the mother numerous times by telephone, email and through Facebook. It is evident from the testimony that the grandparents have a loving relationship with the child, they spent substantial time with her and they have appropriately cared for her.
Although the grandparents did not have contact with the child for almost one year prior to filing the petitions, due to the mother ceasing all communication with them, the grandparents made repeated efforts to continue their relationship with the child. Accordingly, Family Court properly determined that the grandparents established standing to seek visitation with the child.
As standing was established, we turn to the best interests determination, which requires consideration of a variety of factors, including the nature and extent of the existing relationship between the grandparents and the child, the basis and reasonableness of the parent’s objections, the grandparents’ nurturing skills and attitude toward the parent, the attorney for the child’s assessment and, if applicable, the child’s wishes.
The mother objects to the grandparents’ request for visitation based upon the mother’s supposition that the grandparents are overbearing and controlling and they are unable to communicate. The testimony, however, reveals that the grandparents have a loving relationship with the child and have nurtured, supported and appropriately cared for her. The attorney for the child also supports visitation between the grandparents and the child. Having accorded great deference to Family Court’s findings and credibility determinations, we conclude that the record provides a sound and substantial basis for Family Court’s determination that visitation is in the child’s best interests.
The mother also asserts that Family Court’s finding that the grandparents are entitled to extensive visitation with the child lacks a sound and substantial basis. We agree. Family Court has broad discretion in determining an appropriate visitation schedule, and its findings in that regard are entitled to great deference unless they lack a sound and substantial basis in the record.
The grandparents have visitation with the child every weekend from Friday evening until Sunday during the school year and every Thursday until Sunday during the summer. The grandparents’ residence is located in Massachusetts, four hours from the mother’s residence.
This schedule is extremely disruptive, deprives the mother of significant quality time with the child and does not allow the child to become involved in activities which take place on the weekend. In light of the fact that the parties are currently involved in Family Court proceedings in Warren County, and because of the amount of time that has elapsed since the December 2019 order, the matter must be remitted for a hearing to determine an appropriate visitation schedule for the grandparents. In light of our determination with respect to custody, the March 2020 amended order is reversed.
Anne MM. v. Vasiliki NN., – NYS3d – , 2022 WL 959455 (3rd Dep’t. 2022)
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