MINER v. Darryl Welch, Respondent–Petitioner–Respondent. (2018)

MEMORANDUM AND ORDER

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

Memorandum:  In this proceeding pursuant to Family Court Act article 6, petitioners-respondents, the maternal grandparents of the subject children (grandparents), and the Attorney for the Children (AFC) appeal from an order that, inter alia, denied the grandparents' custody petition and granted the petition of respondent-petitioner father awarding the father sole custody of the subject children, with visitation to the grandparents.  We affirm.

“It is well established that, as between a parent and a nonparent, the parent has a superior right of 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 [4th Dept. 1998], quoting Matter of Bennett v. Jeffreys, 40 N.Y.2d 543, 544, 387 N.Y.S.2d 821, 356 N.E.2d 277 [1976] ).  Further, Supreme Court's factual findings “are entitled to great deference, and will not be set aside where, as here, they are supported by the record” (Matter of Cambridge v. Cambridge, 13 A.D.3d 443, 444, 786 N.Y.S.2d 558 [2d Dept. 2004] ).

Contrary to the contention of the grandparents and the AFC, the grandparents failed to establish extraordinary circumstances based on an “extended disruption of custody” inasmuch as the longest period of time that the grandparents had custody of the children was seven months, after which the father regained custody of the children for a period of time (Matter of Suarez v. Williams, 26 N.Y.3d 440, 448, 23 N.Y.S.3d 617, 44 N.E.3d 915 [2015];  cf. Matter of Orlowski v. Zwack, 147 A.D.3d 1445, 1447, 46 N.Y.S.3d 770 [4th Dept. 2017];  see generally Domestic Relations Law § 72[2][b] ).  Contrary to the further contention of the grandparents and the AFC, the grandparents failed to establish extraordinary circumstances based on the father's alleged history of domestic abuse.  At the fact-finding hearing, the father disputed the allegations that he had engaged in acts of domestic violence against the mother, and the evidence established that the domestic violence charges were dismissed (see generally Matter of Aylward v. Bailey, 91 A.D.3d 1135, 1136, 938 N.Y.S.2d 215 [3d Dept. 2012];  Matter of Ramos v. Ramos, 75 A.D.3d 1008, 1012, 905 N.Y.S.2d 717 [3d Dept. 2010] ).

In light of our determination, this Court need not reach the issue of the best interests of the children (see Bennett, 40 N.Y.2d at 548, 387 N.Y.S.2d 821, 356 N.E.2d 277;  Matter of Jody H. v. Lynn M., 43 A.D.3d 1318, 1318, 845 N.Y.S.2d 579 [4th Dept. 2007] ).