HEATHER A. TOMES, DELEVAN, FOR PETITIONER-APPELLANT.
S. ADELSTEIN, OLEAN, FOR RESPONDENT-RESPONDENT KARA GREELEY.
JENNIFER M. LORENZ, ATTORNEY FOR THE CHILDREN, LANCASTER.
PRESENT: SMITH, J.P., CARNI, DEJOSEPH, NEMOYER, AND TROUTMAN,
from an order of the Family Court, Cattaraugus County
(Michael L. Nenno, J.), entered August 10, 2015 in a
proceeding pursuant to Family Court Act article 6. The order,
inter alia, granted custody of the subject children to
respondent Gretchen Tucker.
hereby ORDERED that the order so appealed from is unanimously
affirmed without costs.
On appeal from an order that, inter alia, granted custody of
the subject children to respondent maternal grandmother
(grandmother), petitioner father contends that the
grandmother failed to establish the requisite extraordinary
circumstances. We reject that contention.
well settled that, "as between a parent and 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 Stent v Schwartz, 133
A.D.3d 1302, 1303, lv denied 27 N.Y.3d 902');">27 N.Y.3d 902 [internal
quotation marks omitted]; see Matter of Bennett v
Jeffreys, 40 N.Y.2d 543, 544). The evidence at the
hearing established that, since the father and respondent
mother separated in 2007, the father never had primary
physical placement of the children and did not file a
petition for custody for another seven years. Twice since
then, when the mother was unable to have primary physical
placement of the children, the father consented to award the
grandmother custody of the children. During that time, he
played a minimal role in the children's lives and made no
contact with them for as long as 1½ years at a time.
The grandmother, by contrast, has provided them with a stable
home, where they reside with their mother, half brother, and
uncle. According deference to Family Court's factual
findings and credibility determinations (see Matter of
Mildred PP. v Samantha QQ., 110 A.D.3d 1160, 1161-1162),
we conclude that the court properly found extraordinary
circumstances inasmuch as the father failed to maintain
substantial, repeated and continuous contact with the
children (see Matter of Carpenter v Puglese, 94
A.D.3d 1367, 1368-1369; see also Matter of Laura M. v
Nicole N., 143 A.D.3d 722, 723).
the father correctly contends that the court made no
determination with respect to the best interests of the
children, we conclude that reversal is not required on that
ground. The record is sufficient for this Court to make such
a determination, and we do so in the interest of judicial
economy and the children's well-being (see Matter of
Cole v Nofri, 107 A.D.3d 1510, 1512, appeal
dismissed and lv denied 22 N.Y.3d 1083; Matter of
Howell v Lovell, 103 A.D.3d 1229, 1231). Upon our review
of the relevant factors (see Fox v Fox, 177 A.D.2d
209, 210), we conclude that it is in the children's best
interests to award the grandmother primary physical custody.
Although the custodial arrangement has been unstable
throughout the children's lives, the grandmother has
continuously provided them with a stable home whenever
needed. The grandmother's country home was recently
renovated and the children have their own bedrooms, whereas
the father over the years has resided with a series of
paramours and has acknowledged that he does not have a plan
if his current living situation changes. While living with
the grandmother, the children have developed a close
relationship with their half brother who also lives there.
The grandmother has facilitated the children's schooling
and extracurricular activities, whereas the father did not
know the names of their teachers or pediatrician. Moreover,
the grandmother is financially stable, owns her own home, and
is employed full time as a registered nurse.
father failed to preserve for our review his further
contention that the Attorney for the Children failed to
advocate for the children's position concerning custody
or to request a Lincoln hearing, and thus provided
ineffective assistance of counsel (see Matter of Lopez v
Lugo, 115 A.D.3d 1237, 1237-1238). The father also
failed to preserve for our review his contention that the
court should have ...