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In re Gonzalez

Supreme Court of New York, Second Department

December 24, 2019

In the Matter of Irma Gonzalez, petitioner-respondent,
v.
Ruben Pagan, appellant, Michelle Santiago, respondent-respondent. Docket Nos. O-9158-17, O-9158-17/17A, V-1537-05/17A, V-1537-05/17B, V-9156-17, V-9157-17

          Submitted - October 11, 2019

         D61290 T/htr

          Lisa Colin, White Plains, NY, for appellant.

          W. David Eddy, Jr., White Plains, NY, for petitioner-respondent.

          Salihah R. Denman, Harrison, NY, for respondent-respondent.

          Donna E. Abrams, White Plains, NY, attorney for the child.

          WILLIAM F. MASTRO, J.P. COLLEEN D. DUFFY BETSY BARROS VALERIE BRATHWAITE NELSON, JJ.

          DECISION & ORDER

         In a proceeding pursuant to Family Court Act article 6, the father appeals from an order of the Family Court, Westchester County (Hal B. Greenwald, J.), dated October 19, 2018. The order, insofar as appealed from, after a fact-finding hearing, granted the petition to award custody of the subject child to the nonparent petitioner.

         ORDERED that the order is affirmed insofar as appealed from, without costs or disbursements.

         The nonparent petitioner filed a petition for custody of the subject child when the child was 14 years old. At the time the petition was filed, the petitioner had cared for the child for approximately four years. After a fact-finding hearing and an in camera interview with the child (see Matter of Lincoln v Lincoln, 24 N.Y.2d 270), the Family Court granted the petition. The father appeals.

         Although a parent has the right to custody of his or her own child superior to that of any nonparent, a nonparent may show that the parent has relinquished that right due to surrender, abandonment, persistent neglect, unfitness, or other like extraordinary circumstances (see Matter of Joel T. v Miriam T., 163 A.D.3d 828, 829; Matter of North v Yeagley, 96 A.D.3d 949, 950). "Where extraordinary circumstances are present, the court must then consider the best interests of the child in awarding custody" (Matter of North v Yeagley, 96 A.D.3d at 950; see Matter of Joel T. v Miriam T., 163 A.D.3d at 829).

         "'Inasmuch as the Family Court is in the best position to evaluate the credibility, temperament, and sincerity of the parties, its determination should be set aside only if it lacks a sound and substantial basis in the record'" (Matter of Joel T. v Miriam T., 163 A.D.3d at 829, quoting Matter of Roberta W. v Carlton McK., 112 A.D.3d 729, 730). Here, we agree with the Family Court's determination that the petitioner demonstrated that she has standing to seek custody by establishing the existence of extraordinary circumstances (see Matter of Laura M. v Nicole N., 143 A.D.3d 722, 723; Matter of Rochelle C. v Bridget C., 140 A.D.3d 749, 750). The petitioner demonstrated that she nurtured the subject child, provided food and shelter, and took responsibility for his education and medical needs to such an extent that she provided the major parental functions for many years, which became more prevalent in 2016 when the child began living with her. The father did not attend to the child's basic physical or psychological needs, was not involved in the child's education or in the child's medical care, and the child stayed with him only sporadically. Further, the court's determination that awarding custody of the child to the petitioner was in the child's best interests has a sound and substantial basis in the record (see Eschbach v Eschbach, 56 N.Y.2d 167, 171).

         The father's remaining contention is without merit.

          MASTRO, JP, DUFFY, BARROS and ...


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