Calendar Date: February 13, 2018
J. Albaugh, Delhi, for appellant.
M. Garufi, Binghamton, attorney for the child.
Before: McCarthy, J.P., Lynch, Clark, Aarons and Pritzker,
MEMORANDUM AND ORDER
from an order of the Family Court of Broome County
(Connerton, J.), entered August 23, 2016, which dismissed
petitioner's application, in a proceeding pursuant to
Family Ct Act article 6, for custody of the subject child.
Maryann SS. (hereinafter the mother) and Lawrence TT.
(hereinafter the father) are the biological parents of one
child (born in 2013). The father and petitioner were in a
relationship with one another when the child was conceived
and had custody of the child with no objection or involvement
from the mother. When the father died in early 2016, the
child initially remained in the care of petitioner. In April
2016, a caseworker with respondent Broome County Department
of Social Services (hereinafter DSS) visited petitioner's
home and found a note on the door indicating that petitioner
had taken the child to New York City to prepare to move to
South Carolina. Assisted by law enforcement, the South
Carolina Department of Social Services subsequently located
the child and placed her in overnight foster care in South
Carolina allowing for DSS caseworkers from New York to
retrieve the child and bring her back to New York. Upon doing
so, DSS placed the child in foster care in New York and
arranged for visitation between petitioner and the child. As
a result of petitioner's flight from this state with the
child who she had no legal custody of or biological
relationship with, an ongoing DSS investigation was indicated
against petitioner for inadequate guardianship.
then commenced this proceeding pursuant to Family Ct Act
article 6 for custody of the child, and the child's
foster parents also filed a custody petition. In turn, DSS
filed a petition to adjudicate the subject child to be a
destitute child. Following a fact-finding hearing on
petitioner's custody petition, Family Court found that
petitioner lacked a stable home environment to raise the
child and dismissed her petition for custody. Petitioner now
argues, among other things, that Family Court failed to
utilize the extraordinary circumstances analysis applicable
to a custody dispute involving a nonparent and that she has
demonstrated that extraordinary circumstances exist and that
it is in the child's best interests to be in her care.
"It is well settled that a parent has a claim of custody
of his or her child, superior to that of all others, in the
absence of surrender, abandonment, persistent neglect,
unfitness, disruption of custody over an extended period of
time or other extraordinary circumstances" (Matter
of Battisti v Battisti, 121 A.D.3d 1196, 1196-1197
 [internal quotation marks and citations omitted];
accord Matter of Mildred PP. v Samantha QQ., 110
A.D.3d 1160, 1161 ). A nonparent seeking custody of a
child bears the burden to establish extraordinary
circumstances (see Domestic Relations Law § 72
; Matter of Mildred PP. v Samantha QQ., 110
A.D.3d at 1161; Matter of Ramos v Ramos, 75 A.D.3d
1008, 1010 ). If a showing of extraordinary
circumstances has been made, the relevant inquiry becomes the
child's best interests (see Matter of Shaver v
Bolster, 155 A.D.3d 1368, 1369 ; Matter of
Renee DD. v Saratoga County Dept. of Social Servs., 154
A.D.3d 1131, 1131 ). Family Court made no threshold
finding of extraordinary circumstances that would have then
permitted consideration of whether it would be in the best
interests of the child to be in the custody of petitioner.
There is also no indication in the record that a prior
finding of extraordinary circumstances had been made, and
Family Court considered only whether petitioner maintained a
stable home environment in which to raise the child.
we are mindful that we have the authority to conduct an
independent review of an adequately developed record and
determine whether extraordinary circumstances exist, we
decline to do so here. During the pendency of this appeal, we
were provided with a subsequent October 6, 2017 order in
which Family Court, among other things, placed the child in
the custody of DSS, which now supports placement of the child
in the custody of petitioner, and denied the foster
parents' petition for custody. In so ordering, Family
Court indicated that petitioner "appears to have
demonstrated stability and has remained extremely committed
to the child" and that the child "is very bonded to
[petitioner]" and "thriving in her care."
"[I]n light of the fact that an extraordinary
circumstances analysis 'must consider the cumulative
effect of all issues present in a given case'"
(Matter of Tamika B. v Pamela C., 151 A.D.3d 1220,
1221 , quoting Matter of Peters v Dugan, 141
A.D.3d 751, 753  [internal quotation marks and
citations omitted]; see Matter of Heather U. v Janice
V., 152 A.D.3d 836, 839 ; Matter of Marcia ZZ.
v April A., 151 A.D.3d 1303, 1304 ), we find that
this new information indicates that the record before us is
no longer sufficient to permit intelligent appellate review
of the underlying custody determination in this case (see
Matter of Michael B., 80 N.Y.2d 299, 318 ;
Matter of Tamika B. v Pamela C., 151 A.D.3d at 1221;
Matter of McArdle v McArdle, 1 A.D.3d 822, 823
; cf. Matter of Gunn v Gunn, 129 A.D.3d 1533,
1534 ). Accordingly, we reverse Family Court's
order and remit the matter for further proceedings, including
the receipt of additional evidence from the parties, if
Family Court so advises, and Family Court must determine
first whether petitioner demonstrated extraordinary
circumstances, and, if so, then consider the best interests
of the child (see Matter of Tamika B. v Pamela C.,
151 A.D.3d at 1221-1222).
McCarthy, J.P., Lynch, Aarons and Pritzker, JJ., concur.
that the order is reversed, on the law and the facts, without
costs, and matter remitted to the Family Court of Broome
County for further proceedings ...