IN RE: Sabina FISHBURNE (2006)

In related child custody proceedings pursuant to Family Court Act article 6, the grandmother, Sydney Jennings, appeals, as limited by her brief, from so much of an order of the Family Court, Westchester County (Duffy, J.), entered March 12, 2004, as, after a hearing, dismissed her petition, inter alia, for sole custody of the two youngest children, granted the father's petition, among other things, for sole custody of those children, and directed supervised visitation for the grandmother of all three of the subject children.

ORDERED that the order is affirmed insofar as appealed from, without costs or disbursements.

 “ ‘[A]s between a parent and a nonparent, the parent has the superior right to custody that cannot be denied unless the nonparent establishes that the parent has relinquished that right due to surrender, abandonment, persisting neglect, unfitness, or other like extraordinary circumstances' ” (Matter of General v. General, 31 A.D.3d 551, 552, 820 N.Y.S.2d 73, quoting Matter of Dungee v. Simmons, 307 A.D.2d 312, 312-313, 762 N.Y.S.2d 514;  see Matter of Male Infant L., 61 N.Y.2d 420, 426-427, 474 N.Y.S.2d 447, 462 N.E.2d 1165;  Matter of Bennett v. Jeffreys, 40 N.Y.2d 543, 544, 387 N.Y.S.2d 821, 356 N.E.2d 277).   Only when the nonparent establishes the existence of extraordinary circumstances will the court examine the best interests of the child (see Matter of Esposito v. Shannon, 32 A.D.3d 471, 823 N.Y.S.2d 159;  Matter of General v. General, supra;  Matter of Campbell v. Brewster, 9 A.D.3d 620, 779 N.Y.S.2d 665;  Matter of Dungee v. Simmons, supra;  Domestic Relations Law § 72[2][a] ).

 Contrary to the grandmother's contention, the existence of a previous consent order granting the grandmother and the father joint legal custody of the two youngest children did not satisfy the grandmother's burden of establishing extraordinary circumstances.   The extraordinary circumstances test applies even if there is an existing order of custody unless there was a prior judicial determination that extraordinary circumstances exist (see Matter of Katherine D. v. Lawrence D., 32 A.D.3d 1350, 822 N.Y.S.2d 349;  Matter of Guinta v. Doxtator, 20 A.D.3d 47, 53, 794 N.Y.S.2d 516;  Matter of McArdle v. McArdle, 1 A.D.3d 822, 823, 767 N.Y.S.2d 171;  Matter of Scala v. Parker, 304 A.D.2d 858, 859, 757 N.Y.S.2d 622).   “[A]n existing ‘consent order, standing alone, does not constitute a judicial finding of surrender, abandonment, unfitness, neglect or other extraordinary circumstances' ” (Matter of Moore v. St. Onge, 307 A.D.2d 421, 422, 761 N.Y.S.2d 551, quoting Matter of McDevitt v. Stimpson, 281 A.D.2d 860, 862, 722 N.Y.S.2d 615).   Further, there was no relevant period of time during which the father relinquished control of the children, and his superior right to custody, to the grandmother (see Domestic Relations Law § 72[2][a] ).   Therefore, the grandmother was required to establish the existence of extraordinary circumstances.

The Family Court determined that the grandmother did not make such a threshold showing of the existence of extraordinary circumstances.  “Such factual findings, which are predicated on the Family Court's evaluation of the testimony, character, temperament, and sincerity of the parties, are entitled to great deference and may not be set aside where, as here, they have a sound and substantial basis in the record” (Matter of Rudy v. Mazzetti, 5 A.D.3d 777, 778, 774 N.Y.S.2d 171;  see Matter of Scala v. Parker, supra at 859, 757 N.Y.S.2d 622).

 Further, joint custody is inappropriate where the parties have evidenced an inability or unwillingness to cooperate in making decisions on matters concerning the children (see Bliss v. Ach, 56 N.Y.2d 995, 998, 453 N.Y.S.2d 633, 439 N.E.2d 349;  Amari v. Molloy, 293 A.D.2d 431, 432, 739 N.Y.S.2d 626;  Forzano v. Scuderi, 224 A.D.2d 385, 386, 637 N.Y.S.2d 767).   On this record, the Family Court properly granted the father's petition, inter alia, for sole custody of the two youngest children.

The portion of the order directing that the grandmother's visitation with the children be supervised was appropriate (see Matter of Wilson v. McGlinchey, 2 N.Y.3d 375, 380-381, 779 N.Y.S.2d 159, 811 N.E.2d 526;  Matter of Abranko v. Vargas, 26 A.D.3d 490, 491, 810 N.Y.S.2d 509).

The grandmother's remaining contention is without merit.