KATHLEEN v. JEAN (1999)

Supreme Court, Appellate Division, Fourth Department, New York.

Matter of KATHLEEN A.A., Respondent, v. JEAN A., Appellant, et al., Respondent.

Decided: February 10, 1999

Present: HAYES, J.P., WISNER, PIGOTT, Jr., CALLAHAN and BALIO, JJ.

Rosenthal & Drimer (Andrew Greenberg, of counsel), Syracuse, for Respondent-Appellant. Kathleen Ashley, Syracuse, for Petitioner-Respondent Pro Se. Elisabeth A. Barker, Manlius, for Law Guardian.

Family Court properly granted the cross petition of petitioner seeking custody of her son. The prior order granting custody of petitioner's son to Jean A. (respondent), the child's paternal grandmother, was entered on consent without a finding of extraordinary circumstances. Because petitioner had voluntarily relinquished custody and there was no finding of extraordinary circumstances, the court was not required to apply the “best interests” test in determining the cross petition (see, Matter of Michael G.B. v. Angela L.B.,219 A.D.2d 289, 291, 642 N.Y.S.2d 452; Matter of Gray v. Chambers, 206 A.D.2d 619, 620-621, 614 N.Y.S.2d 591). The burden of proving that extraordinary circumstances exist was on respondent (see, Matter of Michael G.B. v. Angela L.B., supra, at 291, 642 N.Y.S.2d 452), and she failed to present evidence sufficient to require a hearing on the issue whether extraordinary circumstances exist. We have examined respondent's remaining arguments and conclude that they lack merit.

Order unanimously affirmed without costs.

MEMORANDUM:

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