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In re Heather U.

Supreme Court of New York, Third Department

July 6, 2017

In the Matter of HEATHER U., Appellant,
JANICE., Respondent, et al., Respondents. (And Two Other Related Proceedings.)

          Calendar Date: May 2, 2017

          Michelle I. Rosien, Philmont, for appellant.

          Robert C. Kilmer, Binghamton, for Janice V., respondent.

          Irene C. Graven, Owego, attorney for the child.

          Before: Peters, P.J., Garry, Lynch, Clark and Aarons, JJ.


          Lynch, J.

         Appeal from an order of the Family Court of Tioga County (Keene, J.), entered March 22, 2016, which, among other things, dismissed petitioner's application, in a proceeding pursuant to Family Ct Act article 6, to modify a prior order of custody.

         Petitioner (hereinafter the mother) and respondent John W. are the unmarried parents of a child born in 2009. When the child was approximately three months old, the mother and child moved from out of state to live with respondent Janice V. (hereinafter the great-grandmother) at her home in Tioga County.

         The mother and child left and returned to the great-grandmother's residence a number of times during the following years, often for extended periods. In August 2014, when the mother was not residing with the great-grandmother, the mother called the great-grandmother and asked her to take the child because she feared she was going to be arrested. Since then, the child has resided with the great-grandmother. The great-grandmother filed a petition for custody, and, in February 2015, Family Court issued an order granting joint legal custody of the child to the mother and the great-grandmother, with primary physical custody to the great-grandmother and parenting time to the mother as could be agreed, but at least during the day each Sunday. Relevant here, the February 2015 order also directed the mother to ensure that one specific male individual (hereinafter the mother's friend) not have contact with the child and prohibited the mother from having any unrelated individuals present during her parenting time. The order reserved to the mother the right to file a petition for modification at the end of the school year without having to demonstrate a change in circumstances.

         On June 25, 2015, the mother filed a modification petition seeking sole legal and physical custody of the child. After a fact-finding hearing, Family Court awarded joint legal custody to the mother and great-grandmother, primary physical custody to the great-grandmother and granted the mother overnight parenting time each weekend. The mother now appeals and we affirm.

         "[I]t is well settled that a parent has a claim of custody of his or her child that is superior to that of all others, absent surrender, abandonment, persistent neglect, unfitness, disruption of custody over a prolonged period of time or the existence of other extraordinary circumstances" (Matter of Evelyn EE. v Ayesha FF., 143 A.D.3d 1120, 1124 [2016] [internal quotation marks and citations omitted], lv denied 28 N.Y.3d 913');">28 N.Y.3d 913 [2017]). Here, because the parties agreed that the February 2015 order was not made after a finding of extraordinary circumstances, the great-grandmother bore the burden of establishing this threshold element on the mother's modification petition (see Matter of Rumpff v Schorpp, 133 A.D.3d 1109, 1110 [2015]). If this burden is met, a court may consider what custodial arrangement is in the child's best interests (see Matter of Peters v Dugan, 141 A.D.3d 751, 752-753 [2016]).

         The testimony established that, from the time that the child was born, the mother moved with him at least 12 times. During this time, the mother and child would return intermittently to reside with the great-grandmother for extended periods. In August 2014, when the child was five years old, the mother and child were living with the mother's friend. The mother's friend disciplined the child by striking him in the mouth as he was squatting against a wall with a wet pair of pants on his head. The event was videotaped, and the video was shown during the hearing. The child could be heard crying, and the mother's friend struck the child with such force that he was knocked to the ground. During her testimony, the mother diminished this event, described it as a "big mess" and questioned why the police and child protective services had to be involved because the mother's friend merely "popped" the child in the head, causing him to lose his balance.

         The mother claimed during her direct testimony that she complied with the February 2015 order and prohibited contact between the mother's friend and her child. During her crossexamination, however, she admitted that she invited his children on an outing with the child, the mother's friend was there, and a domestic dispute ensued resulting in police involvement. Further, the mother's testimony that she did not have unrelated individuals present during her parenting time was belied by the testimony of an unrelated individual who explained that he was a friend and had spent time with the child and the mother during a day trip to a nearby waterfall, at his home two or three times, at two different restaurants and during several car rides.

         The mother acknowledged during her testimony that an individualized education program was in place for the child but explained that it was merely to address behavioral concerns. The child's teachers testified that, during the 2014-2015 school year, the child was physically aggressive with other students, teachers and special education staff, would hiss and growl and hide under tables and, because he was dangerous to himself and others, was only allowed to attend school for half days. The great-grandmother arranged for the child to obtain mental health treatment, and his therapist testified that he suffered "unspecified stress trauma related disorder." Consequently, the child is prescribed medication to reduce his anxiety. The teachers and mental health providers testified that, since obtaining treatment, the child was able to attend school and that his behavior was markedly improved. The mother characterized the child's behavior as "normal tantrum[s]" and explained that "his dad [is] a psycho and it probably transferred." The mother ...

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