IN RE: JODY H.

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Supreme Court, Appellate Division, Fourth Department, New York.

IN RE: JODY H., Petitioner-Respondent, v. LYNN M., Respondent-Appellant, et al., Respondent.

Decided: September 28, 2007

PRESENT:  SCUDDER, P.J., MARTOCHE, LUNN, PERADOTTO, AND GREEN, JJ. Edward J. Nowak, Public Defender, Rochester (David M. Abbatoy, Jr., of Counsel), for Respondent-Appellant. Richard W. Youngman, Conflict Defender, Rochester (R. Adrian Solomon of Counsel), for Petitioner-Respondent.

 Respondent Lynn M., the paternal aunt of the child who is the subject of this custody proceeding, appeals from an order awarding sole custody of the child to petitioner, the child's father.   Contrary to the contention of the aunt, Family Court properly determined that she failed to establish the existence of extraordinary circumstances to deprive the father of custody, and it therefore was unnecessary for the court to engage in a best interests analysis before awarding custody of the child to him.  “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).

 Without a finding of the existence of extraordinary circumstances, “the inquiry ends” and the court will not reach the issue of the best interests of the child (Matter of Jenny L.S. v. Nicole M., 39 A.D.3d 1215, 1215, 834 N.Y.S.2d 773, lv. denied 9 N.Y.3d 801, 840 N.Y.S.2d 566, 872 N.E.2d 252 [internal quotation marks omitted];  see Matter of Michael G.B. v. Angela L.B., 219 A.D.2d 289, 291, 642 N.Y.S.2d 452).   The fact that the father agreed that the aunt should have physical custody of the child while he was in rehabilitation for substance abuse is insufficient, by itself, to deprive him of custody (see Jenny L.S., 39 A.D.3d at 1216, 834 N.Y.S.2d 773;  Matter of Paul v. Wallace, 226 A.D.2d 1082, 642 N.Y.S.2d 112;  Michael G.B., 219 A.D.2d at 292-293, 642 N.Y.S.2d 452).   Although the aunt is correct that extraordinary circumstances may exist when a parent's voluntary relinquishment of physical custody is combined with other factors, “such as the prolonged separation of parent and child, the psychological attachment of the child to the nonparent and the parent's lack of an established household and unwed state” (Michael G.B., 219 A.D.2d at 293, 642 N.Y.S.2d 452;  see Matter of Cote v. Brown, 299 A.D.2d 876, 877, 750 N.Y.S.2d 254), the requisite additional factors are not present here.   There is no indication in the record that the father abandoned the child to the aunt's care or that he was separated from the child for a prolonged period of time (see Cote, 299 A.D.2d at 877-878, 750 N.Y.S.2d 254;  see also Matter of Dickson v. Lascaris, 53 N.Y.2d 204, 209-210, 440 N.Y.S.2d 884, 423 N.E.2d 361).   Further, there is no evidence that the father has an unstable lifestyle, lacks an established household, associates with criminals, has been convicted of endangering the welfare of a child or has been found to have neglected the child (cf. Matter of Diane FF. v. Faith GG., 291 A.D.2d 671, 672, 737 N.Y.S.2d 437;  Matter of Scott FF. v. Laurene EE., 278 A.D.2d 539, 540, 717 N.Y.S.2d 401;  Matter of Parker v. Tompkins, 273 A.D.2d 890, 708 N.Y.S.2d 791, lv. denied 95 N.Y.2d 762, 715 N.Y.S.2d 215, 738 N.E.2d 363).

The failure of the father to pay the aunt any child support on a voluntary basis is also insufficient, by itself, to establish the existence of extraordinary circumstances and, viewing the evidence in its totality, we conclude that the aunt failed to meet her burden of establishing the existence of extraordinary circumstances.   Additionally, contrary to the contention of the aunt, such circumstances are not established by a showing that she “could do a better job of raising the child” (Matter of Corey L. v. Martin L., 45 N.Y.2d 383, 391, 408 N.Y.S.2d 439, 380 N.E.2d 266 [internal quotation marks omitted] ), or by a showing “that the child has bonded psychologically with [her]” (Matter of Lynda A.H. v. Diane T.O., 243 A.D.2d 24, 26, 673 N.Y.S.2d 989, lv. denied 92 N.Y.2d 811, 680 N.Y.S.2d 457, 703 N.E.2d 269).   In any event, even assuming, arguendo, that the aunt established the existence of extraordinary circumstances, we conclude that the best interests of the child would be served by awarding custody of the child to the father (see generally Eschbach v. Eschbach, 56 N.Y.2d 167, 171-173, 451 N.Y.S.2d 658, 436 N.E.2d 1260).   Finally, we note our disapproval of the fact that this proceeding was pending in Family Court for nearly three years as well as the fact that the custody hearing spanned a period of 15 months (see generally 22 NYCRR 205.14).

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

MEMORANDUM: