IN RE: Mindy L. HOWARD (2009)

 Petitioner mother, as limited by her brief, contends on appeal that Family Court erred in granting the motion of respondent maternal grandmother to dismiss the mother's petition seeking to modify a prior order awarding custody of the mother's child to the grandmother.   We agree with the mother that the court erred in dismissing the petition without determining whether extraordinary circumstances existed to warrant continued custody with the grandmother and, if so, whether the mother established that there has been a change in circumstances such that a modification in custody would be in the best interests of the child.  “It is well established that, as between a parent and a nonparent, the parent has a superior right to custody that cannot be denied unless the nonparent establishes that the parent has relinquished that right because of ‘surrender, abandonment, persisting neglect, unfitness or other like extraordinary circumstances' ” (Matter of Gary G. v. Roslyn P., 248 A.D.2d 980, 981, 670 N.Y.S.2d 270, quoting Matter of Bennett v. Jeffreys, 40 N.Y.2d 543, 544, 387 N.Y.S.2d 821, 356 N.E.2d 277).   The nonparent has the burden of establishing that extraordinary circumstances exist even where, as here, “the prior order granting custody of the child to [the] nonparent[ ] was made upon consent of the parties” (Matter of Katherine D. v. Lawrence D., 32 A.D.3d 1350, 1351, 822 N.Y.S.2d 349, lv. denied 7 N.Y.3d 717, 827 N.Y.S.2d 688, 860 N.E.2d 990;  see also Matter of Guinta v. Doxtator, 20 A.D.3d 47, 53, 794 N.Y.S.2d 516;  Gary G., 248 A.D.2d at 981, 670 N.Y.S.2d 270).   As noted, it is only after a court has determined that extraordinary circumstances exist that the custody inquiry becomes “whether there has been a change of circumstances requiring a modification of custody to ensure the best interests of the child” (Guinta, 20 A.D.3d at 51, 794 N.Y.S.2d 516).

 Here, there is no indication in the record that, in the history of the parties' litigation, the court previously made a determination of extraordinary circumstances divesting the mother of her superior right to custody (see id.;   see generally Bennett, 40 N.Y.2d at 544, 387 N.Y.S.2d 821, 356 N.E.2d 277), and the record is insufficient to enable us to make our own determination with respect to whether extraordinary circumstances exist and, if so, whether the mother established a change in circumstances to warrant a modification of the existing custody arrangement in the best interests of the child (cf. Gary G., 248 A.D.2d at 981, 670 N.Y.S.2d 270;  Matter of Michael G.B. v. Angela L.B., 219 A.D.2d 289, 292, 642 N.Y.S.2d 452).   We note that a hearing on the issue of extraordinary circumstances is not required where the court otherwise possesses sufficient information to render an informed determination on that issue (see generally Matter of Bogdan v. Bogdan, 291 A.D.2d 909, 738 N.Y.S.2d 278).   We therefore reverse the order insofar as appealed from, deny the grandmother's motion in part, reinstate the petition with respect to the mother, and remit the matter to Family Court to determine, following a hearing if necessary, whether extraordinary circumstances exist and, if so, whether a change of circumstances requires modification of custody to ensure the best interests of the child (see generally Matter of Male Infant L., 61 N.Y.2d 420, 427-429, 474 N.Y.S.2d 447, 462 N.E.2d 1165;  McDevitt v. Stimpson, 281 A.D.2d 860, 862, 722 N.Y.S.2d 615).   Finally, we reject the contention of the mother that she was denied effective assistance of counsel (see generally Matter of Nagi T. v. Magdia T., 48 A.D.3d 1061, 850 N.Y.S.2d 732).

It is hereby ORDERED that the order insofar as appealed from is unanimously reversed on the law without costs, the motion is denied in part, the petition with respect to petitioner Mindy L. Howard is reinstated, and the matter is remitted to Family Court, Oswego County, for further proceedings.

MEMORANDUM: