IN RE: a Proceeding Under Article 6 of the Family Court Act D.K. (2017)

This matter having been commenced by Petitioner filing a Petition dated November 10, 2016 and Amended March 30, 2017, requesting custody of the minor child, D. B.; and

The Court reviewed the Statewide registry of Orders of Protection, the Sex Offender Registry and the Family Court's child protective records and has notified the parties of the results thereof; and

The Court having heard testimony from the parties and their respective witnesses (and held a Lincoln hearing with the child); and

Now, the Court makes the following Findings of Facts:

1. Respondent and R. B. are the biological parents of D. B., age 9.

2. Petitioner is the maternal Grandmother of D. B.

3. Respondent and R. B. have never resided together, and until September of 2016, R. B. had legal custody of the child.

4. At the time of birth the child lived with the R. B. in the Town of Marion.

5. Approximately six months after the birth of the child Respondent learned that R. B. had a child when he received a Petition for Paternity and Support from the Wayne County Department of Social Services.

6. The Respondent requested a DNA test and an Order was entered establishing Respondent as the biological Father of the child, D. B. in late 2009.

7. From the time of the birth of the child the Petitioner was a source of assistance and support for the biological Mother, caring for the child while the Mother was working or unavailable.

8. After paternity was established the Respondent did assist with babysitting .

9. At approximately the child's age 3 to 4, R. B. and D. B. moved into Petitioner's residence in the Town of Ontario.

10. R. B. partially resided in Ontario and partially at other locations, however the child only resided in Ontario until February of 2016, with Petitioner.

11. From the time that D. B. came to reside with Petitioner, she has been primary responsible for all needs of the child, feeding, clothing, medical, educational, and emotional.

12. Petitioner was born in 1960, she has had three children of her own, the eldest resided in Palmyra, New York until August of 2016 when she and her family relocated to the Carolina's, R. B. is her second child, and her third child was placed for adoption upon birth.

13. Petitioner is currently married, however she separated from her Husband in approximately February of 2016.

14. Petitioner has a college degree in pre-school education, and currently works as a pre-school teacher in Rochester, New York, she also assist her brother who own a restaurant in Rochester, New York.

15. R. B. born in 1988, is the mother of just this one child, she has recently completed a substance abuse in-patient treatment program (cocaine), and is now attending a treatment center, she has a criminal history, but no indicated child protective reports.

16. Respondent was born in 1987, he knew R. B. through his sister, D. B. is the child of one union between Respondent and R. B.

17. Respondent has one conviction for Driving While Ability Impaired, two convictions for Driving While Intoxicated, a conviction for CPCS7th, and a conviction for Attempted sale of a controlled substance. He had been placed on probation, which he completed, then after his next conviction he was sentenced to Willard Correctional Facility, and placed on parole for one year.

18. Respondent has not had a valid driver's license since 2012.

19. Respondent started dating his current girlfriend J. R. in 2015, he is now living in a home owned by J. R's. father, and he is working for J. R's Uncle in construction.

20. Until Approximately 2015, Respondent's contact with the minor child was sporadic, once he started residing with his current girlfriend his visits became more often, he blames his lack of attention to the minor child on his job as a construction worker.

21. Respondent and J. R. have one child in common, who is almost two years old. J. R. has one other child, approximately 6 years old.

22. Respondent move into J. R.'s residence in July of 2016, since that time there has been at least 12 times that he has left the residence to go reside with his parents after confrontations with J. R., when he had D. B. , he would remove D. B. from the house with him.

23. Respondent's stability is based on his relationship J. R., though he indicates that he is engaged to her, their continual confrontations and his continual removal of himself from the residence speaks otherwise.

24. D. B. commenced school in the Wayne Central School District, and completed Kindergarten and first grade there.

25. Petitioner has been actively involved with D. B's education attending conferences, speaking with teachers and participating in school activities and events.

26. In February of 2016, Petitioner was evicted from her residence in Ontario and she and D. B. then moved in with her daughter in Palmyra, and later a friend. D. B. continued his schooling at Wayne Central.

27. In August of 2016, Petitioner contacted Respondent and asked him to ‘step up to the plate’ and care for D. B. on a short term bases until she secured adequate housing, D. B. moved in with Respondent in mid-August of 2016, Respondent then filed a petition for custody in September of 2016.

28. In Court on September 8, 2016, all parties agreed that D. B. stay with Respondent, but the Court reserved the right to Petitioner to have the child returned to her once she secured stable housing. In November Petitioner had secured stable housing and filed the Petition to have the child returned to her.

29. In September D. B. was enrolled in Marion Central School District, where he has just completed 2nd grade and all parties have participated in D. B.'s school programs and outside activities.

30. During the time that D. B. has been with Respondent, Petitioner has had D. B. a portion of every weekend, partially to insure that he continue his religious education program at the same church he has been attending since his age three.

31. Both Respondent and Petitioner agree that D. B. should not be in the presence of R. B. unsupervised.

32. Generally Respondent and Petitioner have been able to communicate with each other concerning spending time with D. B.

33. D. B. has lived with Petitioner for approximately four years and he has lived with the Respondent less than one year.

Conclusions of Law

It is fundamental that a biological parent has a right to custody of their child superior to that of a non-parent in the absence of surrender, abandonment, persisting neglect, unfitness or other like extraordinary circumstances. Matter of Bennett v. Jeffreys, 40 NY2d 543(1976). The burden of proving such extraordinary circumstances rest with the non-parent seeking custody of the minor children, Mercado v. Mercado, 64 AD3d 951(3rd Dept. 2009) and, if established, the controlling consideration in determining custody if the best interest of the child. Bennett v. Jeffreys, 40 NY2d 548(1976), Matter of Magana v. Santos, 70 Ad3d 1209 (3rd Dept 2010), Matter of Vann v. Herson, 2 Ad3d 910 (3rd Dept. 2003).

Unlike other non-parents, Grandparents have additional rights concerning custody and visitation of their Grandchildren. Under Domestic Relations Law section 72(2)(a), an extended disruption of custody, as such term is defined in this section, shall constitute an extraordinary circumstance allowing the Court to address where, in the best interest of the child, residency should be. Turning to the Definition:

DRL 72(2)(b) For the purposes of this section “extended disruption of custody” shall include, but not be limited to, a prolonged separation of the respondent parent and the child for at least twenty-four continuous months during which the parent voluntarily relinquished care and control of the child and the child resided in the household of the petitioner grandparent or grandparents, provided, however, that the court may find that extraordinary circumstances exist should the prolonged separation have lasted for less than twenty-four months.

The evidence presented at the hearing established that since the child's age 3 or 4, he has been in the care and custody of the Grandmother, Petitioner. During that time she has been the provider for the child emotionally, physically and economically. The Court acknowledges that the Respondent did have an Order of Support to provide financial assistance for the child, however, he has consistently been in arrears concerning such support. This placement with the Petitioner was only disrupted when the Petitioner sought to find housing, and contacted the Respondent to ‘step up to the plate’ and care for the child. For the first time in his eight years the child went to reside with the Respondent, and in September of 2016, was the first time that the Respondent ever petitioned for custody of the child.

During the time that the child resided with the Petitioner, the Respondent had the ability to have regular access to the child, however by his own choice, until the child's age six, the Respondent had sporadic visitation with the child. It was not until the Respondent started dating his current girlfriend that he commenced regular access to the child.

The prior Court Order dated October 4, 2016, included the right of the Petitioner to Petition to have the child returned to her once her housing was stabilized, which she did two months later.

The Court finds that the child has resided with the Petitioner for a period longer than twenty-four months, and therefore finds extraordinary circumstances. The Court then moves to the issue of best interest of the child to determine where the child should reside and what access others should have to the child. Matter of Bennett v. Jeffreys, 40 NY2d 543(1976).

The Petitioner had resided at her home in Ontario for four years. It was not until her marriage ended that she ended up looking for other housing options. Even when she was searching she made sure that she and the child had a safe place to live, and that the child continue to attend his schooling at Wayne Central. It was not until she felt that she had run out of options in August of 2016, that she sought out the Respondent to care for the child, and insure that the child was in a stable location to commence his second grade at school.

During those four years, the child resided with the Petitioner, the biological Mother apparently came and went as she chose, and the Respondent resided at various locations, including Willard Correctional Center. It was not until the Respondent started dating his current girlfriend that he started regular visits with the child.

It was telling during the hearing that the girlfriend did not testify. Though the Respondent indicates that they have a great relationship, he indicates that on at least twelve occasions in the last year he has removed himself from the girlfriends home and taken up residence with his parents due to confrontations between himself and his girlfriend. When the child was living with him, he would remove the child to his parent's home also. The Respondent's stability seems to be based on the girlfriend, they live in her home, he works for her Uncle and he uses her to assist with the care of the child. His background shows instability, he has no driver's license, has not had one since 2012, he has a felony criminal record, his time with the child has been dependent on his choices, which generally put the child last.

Contrary to the Respondent, the Petitioner has been the stable factor in the child's life. She has always worked, she has been with the child since birth in one form or another, she has been the primary caretaker of the child until August of 2016, and even after that date she continue to be active with the child's educational and social life. She is currently in a position to have the child returned to her care, she has made arrangements for his next year's schooling, and day care providers should she be employed when the child needed care.

The Court determines that the Petitioner, D. K., the Father, L. L. and the biological Mother, R. B., shall have joint custody of the minor child, with the Petitioner having primary physical placement. All parties shall be entitled to any records of the child including, social, educational and medical. All visits between the child and R. B. shall be supervised by the Petitioner. The Respondent shall have visits every other weekend from Friday at 6pm until Sunday at 9am. The Petitioner shall be able to pick the child up at the Respondent's home on Sunday for the child to attend church. Once church service and activities are competed, the child shall be returned to the Respondent for the remainder of the afternoon, when the Respondent shall return the child to the Petitioner by 6pm. If the child has a Monday holiday from school, the Respondent may return the child to the Petitioner by 6pm that Monday.

The parties shall communicate concerning holidays, and share time with the child on the holidays. The Respondent will always have the child on Father's day, and if it does not occur on his weekend, he shall have the child after church services until 6pm. Respondent shall have two weeks of summer vacation with the child, and such other and further times as can be agreed upon between the parties.

Counsel for the Petitioner shall submit an Order in accordance herewith upon five (5) days written notice to other counsel.

Richard M. Healy, J.