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Tucker v. Martin

July 2, 2010


Appeal from an order of the Family Court, Oneida County (Brian M. Miga, J.H.O.), entered February 17, 2009 in a proceeding pursuant to Family Court Act article 6. The order dismissed the petition.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.


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


Robert A. Tucker, the petitioner in appeal No. 1 and the respondent in appeal No. 2, is the father of the child who is the subject of this custody proceeding. Eric R. Martin, Sr., a respondent in appeal No. 1 and the petitioner in appeal No. 2, was the boyfriend of the child's now-deceased mother and had lived with the child and the mother for 12 years, since the child was two years old. After the mother's death, both the father (appeal No. 1) and Martin (appeal No. 2) filed petitions seeking custody of the subject child. The father contends in appeal No. 1 that Family Court erred in dismissing his petition seeking custody of his child, and he contends in appeal No. 2 that the court erred in awarding Martin primary physical custody of the child, with joint custody with the father and Martin.

Addressing first the order in appeal No. 2, we agree with the court and the Attorney for the Child that Martin met his burden of establishing that extraordinary circumstances exist to warrant an inquiry into whether it is in the best interests of the child to award him custody (see generally Matter of Bennett v Jeffreys, 40 NY2d 543, 548). Where, as here, there is no evidence that the parent surrendered, abandoned or neglected the child or is otherwise an unfit parent, the question of "[w]hat proof is sufficient to establish such equivalent but rare extraordinary circumstances cannot be precisely measured. We do know that it is not enough to show that the non-parent could do a better job of raising the child . . . Further, the fact that the parent agreed that a non-parent should have physical custody of the child . . . is not sufficient, by itself, to deprive the parent of custody" (Matter of Michael G.B. v Angela L.B., 219 AD2d 289, 292-293 [internal quotation marks and citations omitted]; see generally Matter of Corey L. v Martin L., 45 NY2d 383, 391). On the other hand, extraordinary circumstances may be found based on prolonged separation between the parent and a child born out of wedlock, the attachment of the child to the custodian and the parent's lack of an established household (see Matter of Isaiah O. v Andrea P., 287 AD2d 816, 817; Matter of Commissioner of Social Servs. of City of N.Y. [Sarah P.], 216 AD2d 387, 388; see generally Michael G.B., 219 AD2d at 293).

We reject the contention of the father with respect to both appeals that the court erred in denying what he characterizes as his motion for summary judgment seeking custody of the child. The father in fact moved for dismissal of Martin's petition seeking custody of the child pursuant to CPLR 3211 (a) (7) as well as for summary judgment on the issue of custody but submitted no evidence in support of that part of the motion seeking summary judgment. Indeed, the father appears to have premised his request for summary judgment on the issue of custody on the assumption that the court would grant that part of his motion pursuant to CPLR 3211 (a) (7). The court denied that part of the motion, however, and we conclude on the record before us that the father failed to meet his initial burden on that part of the motion seeking summary judgment, having failed to submit any evidence in support thereof (see generally Zuckerman v City of New York, 49 NY2d 557, 562).

With respect to the court's determination concerning the existence of extraordinary circumstances in appeal No. 2, we conclude that the evidence adduced at the custody hearing supports that determination. The testimony of Martin that he fulfilled a "father" role for the child is supported by the record. The record also establishes that the most familiar and comfortable setting for the child is with Martin, who was part of the only family unit known by the child from the age of two through the time of the custody hearing. Even if, as our dissenting colleagues contend, the child had expressed a desire to live with the father before the onset of the illness that led to the mother's death, the inescapable reality is that the only family truly known by the child had Martin and the now-deceased mother at its core. That family also included half-siblings with whom the child has a close relationship, and grandparents, uncles, aunts, and cousins living in the area where she resided with her mother and Martin.

Reduced to its essence, this case is one in which Martin and the mother primarily provided for the needs of the child since the age of two, and it appears that the father had only limited involvement with the child (see Matter of McDevitt v Stimpson, 1 AD3d 811, 812, lv denied 1 NY3d 509). Separating the child from her home and what is left of the above-described family following the death of her mother and requiring her to live hundreds of miles away from that family with her father, whom she may have seen for only 20 days per year, would undoubtably exacerbate the already significant emotional injury suffered by the child as the result of her mother's death (see Matter of Curry v Ashby, 129 AD2d 310, 318). Important, too, is the fact that the separation of the child from that family would require her to attend a different school, and we note that the father implicitly conceded that it was important to allow the child to stay in the same school for her remaining four years of schooling.

We must also examine the child's prospective destination in determining whether extraordinary circumstances exist, and we are troubled by that prospective destination. The father was, by all indications, separated from his spouse at the time of the custody hearing and was earning a living managing parking lots while he pursued a bachelor's degree. The father also appeared to rely heavily on student loans for financial support and was unsure where he would live after he received his bachelor's degree, which he expected would be within approximately 18 months of the hearing. Based on those factors, as well as the factors set forth herein concerning what was effectively the separation between the father and the child since she was two years old, the child's attachment to the family unit with Martin, with whom she has resided for most of her life, and the drastic change in environment that would result from a change in physical custody, we conclude that there are extraordinary circumstances supporting the consideration of the child's best interests (see generally Isaiah O., 287 AD2d at 817-818; Michael G.B., 219 AD2d at 293-294; Sarah P., 216 AD2d at 388).

It is well settled that, "once extraordinary circumstances are found, the court must then make the disposition that is in the best interest[s] of the child" (Bennett, 40 NY2d at 548), and we likewise agree with the court and the Attorney for the Child with respect to both appeals that the child's best interests are served by awarding the father and Martin joint custody of the child, with primary physical custody with Martin. In making a best interests determination, parental rights may not be "relegated to a parity with all the other surrounding circumstances in the analysis of what is best for the child" (id.). Indeed, "in ascertaining the child's best interest[s], the court is guided by principles which reflect a considered social judgment in this society respecting the family and parenthood' " (id. at 549, quoting Matter of Spence-Chapin Adoption Serv. v Polk, 29 NY2d 196, 204). A best interests analysis is comprised of numerous factors, " including the continuity and stability of the existing custodial arrangement, the quality of the child's home environment and that of the [party] seeking custody, the ability of each [party seeking custody] to provide for the child's emotional and intellectual development, the financial status and ability of each [party seeking custody] to provide for the child, and the individual needs and expressed desires of the child' " (Matter of Michael P. v Judi P., 49 AD3d 1158, 1159; see generally Fox v Fox, 177 AD2d 209).

"It is well established that a trial court's determination of a child's best interests must be accorded the greatest respect . . ., and will not be disturbed if it has a sound and substantial basis in the record" (Matter of Deborah E.C. v Shawn K., 63 AD3d 1724, 1725, lv denied 13 NY3d 710 [internal quotation marks omitted]). We conclude on the record before us that the court's custody determination has a sound and substantial basis in the record (see generally Matter of Goossen v Goossen, 72 AD3d 1591; cf. Michael P., 49 AD3d at 1159-1160). The child was 14 years old at the time of the hearing, and the essential components of her life, i.e., most of her relatives, her school, her physicians and her friends, are in the county in which she currently lives. By contrast, the child, who is now 16 years of age, knows no one but the father at the out-of-state location where the father resides. The record also establishes that Martin is more financially stable than the father and is better equipped to provide for the child's health and prospective post-secondary educational needs. We thus decline to disturb the court's custody determination.

Finally, with respect to appeal No. 2, the father does not challenge any issues concerning his visitation rights and has thus abandoned any issue with respect thereto (see Ciesinski v Town of Aurora, 202 AD2d 984). We further note that the consolidated record contains a transcript of a proceeding held after the filing of the notice of appeal in appeal No. 1,in which the court dismissed the father's custody petition, and after the dispositional hearing in appeal No. 2. That transcript indicates that the father refused to return the child's telephone calls, kept the child's social security checks, had the child's cellular telephone disconnected and showed no ...

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