IN RE: Stephanie LAMPITT, respondent, v. Joanne LAMPITT, et al., appellants.
-- February 27, 2013
Cartier, Bernstein, Auerbach & Dazzo, P.C., Patchogue, N.Y. (George Dazzo of counsel), for appellants.Thomas W. McNally, Huntington, N.Y., attorney for the child.
In a child custody proceeding pursuant to Family Court Act article 6, the maternal grandparents of the subject child appeal from an order of the Family Court, Suffolk County (Boggio, Ct. Atty. Ref.), dated December 19, 2011, which granted the mother's petition to modify a prior order of the same court dated March 18, 2002, entered upon the consent of the parties, so as to award the mother sole custody of the child.
ORDERED that the order is affirmed, without costs or disbursements.
As between a parent and a nonparent, the parent has the superior right to custody that cannot be denied unless the nonparent establishes that the parent relinquished that right due to the existence of extraordinary circumstances, such as surrender, abandonment, persistent neglect, or unfitness (see Matter of Bennett v. Jeffreys, 40 N.Y.2d 543, 548, 387 N.Y.S.2d 821, 356 N.E.2d 277; Matter of Revis v. Marzan, 100 A.D.3d 1004, 1004–1005, 954 N.Y.S.2d 217; Matter of Brown v. Zuzierla, 73 A.D.3d 765, 766, 900 N.Y.S.2d 414; Matter of Krieger v. Krieger, 65 A.D.3d 1352, 1353, 885 N.Y.S.2d 611). “The burden of proof is on the nonparent to prove such extraordinary circumstances” (Matter of Rudy v. Mazzetti, 5 A.D.3d 777, 778, 774 N.Y.S.2d 171). “Absent proof of such extraordinary circumstances, an inquiry into the best interests of the child is not triggered” (Matter of Jiminez v. Jiminez, 57 A.D.3d 781, 781, 868 N.Y.S.2d 895; see Matter of Revis v. Marzan, 100 A.D.3d at 1005, 954 N.Y.S.2d 217; Matter of Krieger v. Krieger, 65 A.D.3d at 1353, 885 N.Y.S.2d 611). Here, the Family Court properly determined that the maternal grandparents failed to meet their burden of demonstrating the existence of extraordinary circumstances (see Matter of Krieger v. Krieger, 65 A.D.3d at 1353, 885 N.Y.S.2d 611; Matter of Jiminez v. Jiminez, 57 A.D.3d at 781, 868 N.Y.S.2d 895). Accordingly, the Family Court properly granted the mother's petition to modify the order dated March 18, 2002, so as to award her sole custody of the child.