PAMELA v. CHARLES JR (2001)

Family Court properly awarded custody of respondent-father's (respondent) son to petitioners, respondent's sister and her husband.  “[T]ransfer of custody from a parent to a nonparent requires a showing of extraordinary circumstances justifying the court's intervention, followed by a showing that an award of custody to the nonparent is in the child's best interests” (Matter of Sales v. Gisendaner, 272 A.D.2d 997, 707 N.Y.S.2d 562).   Petitioners had the burden of establishing that respondent relinquished his superior right to parent his son based on extraordinary circumstances, such as “surrender, abandonment, persisting neglect, unfitness, and unfortunate or involuntary disruption of custody over an extended period of time” (Matter of Bennett v. Jeffreys, 40 N.Y.2d 543, 546, 387 N.Y.S.2d 821, 356 N.E.2d 277).   Here, petitioners established persisting neglect and unfitness (see, Matter of Benzon v. Sosa, 244 A.D.2d 659, 662, 663 N.Y.S.2d 938).   After hearing testimony from petitioners and respondent, the court found that respondent had engaged in bizarre and violent behavior with his son and others and had left his son at home with no supervision on numerous occasions.   The court also found that respondent has a history of mental illness requiring that he be medicated but that respondent's mental condition made it “less likely” that respondent would take his medication.   In addition, the court found that respondent had been resistant to treatment for his mental illness and that he has a history of drug abuse.   The hearing court's credibility determinations should be afforded great deference (see generally, Matter of Coryea v. Allen, 262 A.D.2d 1023, 1024, 691 N.Y.S.2d 829, lv. denied 94 N.Y.2d 751, 700 N.Y.S.2d 425, 722 N.E.2d 505), and we conclude that the record supports the court's determinations that extraordinary circumstances exist and that the award of custody to petitioners is in the best interests of the child (see, Matter of Benzon v. Sosa, supra, at 662, 663 N.Y.S.2d 938).

Order unanimously affirmed without costs.

MEMORANDUM: