MILLER v. MICHALSKI (2004)

 We agree with respondent that Family Court erred in awarding custody of his child to petitioner, the child's paternal aunt, “without first considering whether extraordinary circumstances exist to deprive [respondent] of [his] superior right to custody” (Matter of Michael G.B. v. Angela L.B., 219 A.D.2d 289, 291, 642 N.Y.S.2d 452).   Nevertheless, the record before us is sufficient to determine whether extraordinary circumstances exist, and we therefore determine that issue in the interest of judicial economy (see id. at 292, 642 N.Y.S.2d 452;  cf. Matter of Lewis v. Johnson, 302 A.D.2d 756, 757-758, 756 N.Y.S.2d 310).   The record establishes that respondent, who was 65 years old at the time of the hearing, has an IQ of 66 and a developmental disability described as globally impaired cognitive functioning;  that respondent has never had custody of the child;  that respondent could not, without assistance, successfully accomplish simple tasks such as changing the child's diaper;  that respondent is not eligible for services through Community Services for the Developmentally Disabled;  and that the child is psychologically attached to petitioner and is doing well in petitioner's care.   We conclude that those facts, considered together, constitute extraordinary circumstances warranting consideration of the best interests of the child (see generally Matter of Bennett v. Jeffreys, 40 N.Y.2d 543, 549, 387 N.Y.S.2d 821, 356 N.E.2d 277;  Michael G.B., 219 A.D.2d at 293, 642 N.Y.S.2d 452;  Matter of Pauline G. v. Carolyn F., 187 A.D.2d 589, 590 N.Y.S.2d 124;  Matter of Mary H. v. Helen P., 131 A.D.2d 571, 516 N.Y.S.2d 288).   We further conclude that the court's award of custody to petitioner has a sound and substantial basis in the record, and we decline to disturb it (see White v. White, 209 A.D.2d 949, 950, 619 N.Y.S.2d 428, lv. dismissed 85 N.Y.2d 924, 627 N.Y.S.2d 324, 650 N.E.2d 1326).

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.

MEMORANDUM: