IN RE: REBECCA S. (2024)

MEMORANDUM AND ORDER

Appeal from an order of the Family Court of Clinton County (Keith M. Bruno, J.), entered May 3, 2023, which granted petitioner's application, in a proceeding pursuant to Family Ct Act article 6, to modify a prior order of custody and visitation.

Respondent Ashley T. (hereinafter the mother) and respondent Dustin U. (hereinafter the father) are the parents of the subject child (born in 2019).  Petitioner (hereinafter the aunt) is the child's paternal aunt.  In December 2019, following, among other concerns, certain criminal behavior on the part of the mother and her then-husband, the aunt filed an ex parte application for temporary custody of the child, which was granted.  In September 2020, the parties consented to an order awarding the aunt sole custody of the child and providing the parents with supervised visitation, and they later consented to some adjustment of that order in November 2021.  In March 2022, the mother filed a pro se petition to modify the November 2021 consent order and regain custody of the child, asserting generally that she had complied with all suggestions of Child Preventative Services.  The aunt opposed and cross-petitioned for an order of sole custody supported by a finding of extraordinary circumstances – relief consented to by the father and supported by the attorney for the child.  She also requested that the mother's supervised visitation be directed to take place at a visitation center, given the unavailability of supervisors.

The matters proceeded to a fact-finding hearing.  At the close of the mother's case-in-chief, Family Court granted a motion by the aunt, joined in by the father, to dismiss the mother's petition for failure to establish a change in circumstances.  The court ultimately granted the aunt's cross-petition, concluding that she had established both a change in circumstances and extraordinary circumstances and that the best interests of the child lie in an award of sole custody to her, with supervised visitation to the parents.  The mother appeals, exclusively arguing that the aunt failed to establish a change in circumstances between entry of the November 2021 order and the filing of her April 2022 cross-petition, and therefore requesting that the November 2021 order be reinstated.

We affirm, but we begin our analysis by noting the significant and substantial procedural confusion.  Although the threshold issue in a custody modification proceeding as between parents is whether a change in circumstances has occurred since entry of the governing order, “where, as here, a parent seeks to regain custody from a nonparent ․, it is well established that, unless a finding of extraordinary circumstances was made in a prior order, the parent is not required to prove a change in circumstances as a threshold matter” (Matter of Dumond v. Ingraham, 129 A.D.3d 1131, 1132–1133, 9 N.Y.S.3d 477 [3d Dept. 2015];  see Matter of Melissa MM. v. Melody NN., 169 A.D.3d 1280, 1281, 94 N.Y.S.3d 718 [3d Dept. 2019];  Matter of Christy T. v. Diana T., 156 A.D.3d 1159, 1160, 66 N.Y.S.3d 746 [3d Dept. 2017]).  Here, the consent orders had not included any finding of extraordinary circumstances;  the aunt specifically requested that finding be made.  The mother therefore bore no obligation to demonstrate a change in circumstances (compare Matter of Donald EE. v. Heidi FF., 198 A.D.3d 1118, 1119, 152 N.Y.S.3d 859 [3d Dept. 2021]).  Nonetheless, the mother has not challenged the dismissal of her petition, and she has therefore abandoned any argument with respect to this issue (see Matter of Joseph L. v. Heather K., 214 A.D.3d 1041, 1042 n 2, 184 N.Y.S.3d 467 [3d Dept. 2023];  Matter of Donnie HH. v. Ashley II., 174 A.D.3d 988, 989 n 2, 106 N.Y.S.3d 184 [3d Dept. 2019];  Matter of Fiacco v. Fiacco, 158 A.D.3d 1011, 1012, 71 N.Y.S.3d 680 [3d Dept. 2018]).

The aunt also did not need to demonstrate a change in circumstances upon her cross-petition.  Instead, the aunt bore the burden – with respect to both her cross-petition and in opposing the mother's petition – to demonstrate extraordinary circumstances (see Matter of Autumn B. v. Jasmine A., 220 A.D.3d 1073, 1074, 198 N.Y.S.3d 252 [3d Dept. 2023], lv denied 41 N.Y.3d 901, 2024 WL 629849 [2024];  Matter of Smith v. Anderson, 137 A.D.3d 1505, 1507 n 4, 28 N.Y.S.3d 732 [3d Dept. 2016];  Matter of Rumpff v. Schorpp, 133 A.D.3d 1109, 1110, 21 N.Y.S.3d 374 [3d Dept. 2015];  Matter of McBride v. Springsteen–El, 106 A.D.3d 1402, 1403–1404, 967 N.Y.S.2d 768 [3d Dept. 2013]).  A nonparent seeking to modify an existing order entered on consent does not bear a two-fold burden (see Matter of Dakota G. v. Chanda H., 179 A.D.3d 1167, 1169, 117 N.Y.S.3d 329 [3d Dept. 2020];  see e.g. Matter of Linda UU. v. Dana VV., 212 A.D.3d 906, 907–908, 181 N.Y.S.3d 372 [3d Dept. 2023], lv denied 39 N.Y.3d 913, 2023 WL 3513093 [2023];  Matter of Robert XX. v. Susan YY., 202 A.D.3d 1389, 1389–1390, 164 N.Y.S.3d 257 [3d Dept. 2022], lv denied 38 N.Y.3d 907, 2022 WL 1574614 [2022];  Matter of Tiffany W. v. James X., 196 A.D.3d 787, 788, 151 N.Y.S.3d 225 [3d Dept. 2021];  Matter of Melissa MM. v. Melody NN., 169 A.D.3d at 1281, 94 N.Y.S.3d 718;  Matter of Rush v. Roscoe, 99 A.D.3d 1053, 1054, 953 N.Y.S.2d 308 [3d Dept. 2012]).

Upon appeal, the mother does not challenge Family Court's extraordinary circumstances finding or its best interests analysis.  The sole mention of extraordinary circumstances or best interests is set forth in the conclusion of the mother's brief, where she asserts that, in her view, the alleged change in circumstances error should have precluded the court from going on to consider those other issues.  The aunt, the father and the attorney for the child have each expressly tailored their responsive arguments accordingly.  The mother did not file a reply brief, despite the multiple arguments by the other parties regarding her abandonment of these issues.  Although Family Court misunderstood the applicable burden, we must find that the mother has abandoned any germane challenge to the aunt's cross-petition (see Matter of Tasha AA. v. Tammy DD., 178 A.D.3d 1306, 1308 n 1, 116 N.Y.S.3d 729 [3d Dept. 2019];  Matter of Donald EE. v. Cheyenne EE., 177 A.D.3d 1112, 1115, 115 N.Y.S.3d 123 [3d Dept. 2019], lv denied 35 N.Y.3d 903, 2020 WL 2204079 [2020];  Matter of William O. v. Wanda A., 151 A.D.3d 1189, 1191 n 2, 55 N.Y.S.3d 810 [3d Dept. 2017], lv denied 30 N.Y.3d 902, 67 N.Y.S.3d 128, 89 N.E.3d 518 [2017];  Matter of Tara AA. v. Matthew BB., 139 A.D.3d 1136, 1137–1138, 31 N.Y.S.3d 303 [3d Dept. 2016];  Matter of Youngs v. Olsen, 106 A.D.3d 1161, 1163 n, 966 N.Y.S.2d 235 [3d Dept. 2013];  Matter of Austin v. Herbert, 22 A.D.3d 897, 898, 802 N.Y.S.2d 553 [3d Dept. 2005], lv denied 6 N.Y.3d 702, 810 N.Y.S.2d 416, 843 N.E.2d 1156 [2005]).

ORDERED that the order is affirmed, without costs.

Garry, P.J.

Egan Jr., Clark, Fisher and McShan, JJ., concur.