Calendar Date: November 14, 2019
V. Carrascoso, Cooperstown, for appellant.
E. Van Tull, Binghamton, for Dakota G., respondent.
Christopher Hammond, Cooperstown, for Shirley I., respondent.
Charles Anderson, Elmira, for Florencio J., respondent.
K. Miller, McGraw, attorney for the child.
Before: Garry, P.J., Clark, Mulvey, Pritzker and Reynolds
from an order of the Family Court of Chemung County
(Tarantelli, J.), entered March 23, 2018, which, among other
things, granted petitioner's application, in proceeding
No. 2 pursuant to Family Ct Act article 6, for custody of the
G. (hereinafter the mother) and respondent Florencio J.
(hereinafter the father) are the parents of a child (born in
2016). In early 2016, several weeks after the child's
birth, the mother and the child moved in with respondent
Chanda H. (hereinafter the neighbor) - a woman whom the
mother had only briefly met on one prior occasion. At that
time, the father's paternity had not yet been
established, and, as a result of the mother's frequent
and lengthy absences from the home, the neighbor - to her
credit - became the child's de facto primary caregiver.
March 2016, not long after the mother and the child came to
live with her, the neighbor filed a petition for custody of
the child, in which she disingenuously claimed that the
biological father was "unknown." Around that same
time, the father filed petitions seeking to establish his
paternity and to obtain custody, both of which were
ultimately joined with the neighbor's petition. However,
based upon the father's failure to appear at several
scheduled appearances, his petitions were subsequently
dismissed. The mother, whose location was unknown, similarly
failed to appear in Family Court, despite repeated and
numerous efforts to serve her with the petitions. In June
2016, with paternity not having been established and the
mother's whereabouts unknown, Family Court issued an
order on default granting legal and physical custody of the
child to the neighbor and supervised visitation to the
November 2016, the mother filed a petition seeking visitation
with the child (proceeding No. 1).  Roughly two months later,
after the father's paternity had been established, the
child's paternal aunt - petitioner Shirley I.
(hereinafter the aunt) - filed for custody (proceeding No.
2). Following a lengthy fact-finding hearing, Family Court
found that extraordinary circumstances existed to overcome
the mother's and father's superior rights to custody
of the child and that an award of custody to the aunt was in
the child's best interests. Consequently, Family Court,
among other things, granted legal and physical custody of the
child to the aunt  and directed that any contact between
the child and the neighbor "shall be as the parties may
agree, the court having no authority to direct
otherwise." The neighbor appeals. 
reject the neighbor's contention that Family Court was
required to engage in a change in circumstances analysis
before modifying the custody provisions of the June 2016
default order. Given that the June 2016 default order was
issued without any finding of or admission to the presence of
extraordinary circumstances, Family Court properly concluded
that it was required to make a threshold determination of
whether extraordinary circumstances existed to warrant
placement of the child with one of the nonparents (aunt or
neighbor) rather than one of her parents (see Matter of
Elizabeth SS. v Gracealee SS., 135 A.D.3d 995, 996
; Matter of McBride v Springsteen-El, 106
A.D.3d 1402, 1403 ; Matter of Ramos v Ramos,
75 A.D.3d 1008, 1009 ).  The neighbor also argues
that Family Court should have affirmatively granted her
visitation with the child. However, she lacks standing to
request visitation (see Matter of Melody J.M.M. [Craig
M.], 147 A.D.3d 953, 953 ; Matter of Palmatier
v Dane, 97 A.D.3d 864, 865 ). Thus, Family Court
properly stated that any contact between the child and the
neighbor "shall be as the parties may agree, the court
having no authority to direct otherwise."
extent that we have not specifically addressed any of the
neighbor's arguments, they have been ...