Gilchrest v. Patterson
Matter of Gilchrest v Patterson
2008 NY Slip Op 08126
Decided
on October 21, 2008
Appellate
Division, Second Department
Published
by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This
opinion is uncorrected and subject to revision before publication in the
Official Reports.
Decided
on October 21, 2008
SUPREME
COURT OF THE STATE OF
APPELLATE
DIVISION : SECOND JUDICIAL DEPARTMENT
FRED
T. SANTUCCI, J.P.
MARK
C. DILLON
THOMAS
A. DICKERSON
CHERYL
E. CHAMBERS, JJ.
2007-07686
(Docket
Nos. V-8417-05, V-8891-05)
[*1]In
the Matter of Nettie Gilchrest, respondent,
v
Alisa Patterson, appellant. (Proceeding
No. 1)
In
the Matter of Alisa Patterson, appellant,
v
Nettie Gilchrest, respondent. (Proceeding
No. 2)
George E. Reed, Jr.,
DECISION
& ORDER
In
two related child custody proceedings pursuant to Family Court Act article 6,
the mother appeals, as limited by her brief, from so much of an order of the
Family Court, Westchester County (Davidson, J.), entered July 25, 2007, as,
after a hearing, denied her petition and granted the separate petition of the
paternal grandmother for custody of the subject child.
ORDERED that the order is affirmed insofar as appealed from,
without costs or disbursements.
As
between a parent and a nonparent, the parent has the
superior right to custody that cannot be denied unless the nonparent
establishes that the parent has relinquished that right due to surrender,
[*2]abandonment, persistent neglect, unfitness, or similar extraordinary
circumstances (see Matter of Bennett v Jeffreys, 40
NY2d 543, 548; Matter of Fishburne v Teelucksingh, 34 AD3d 804; Matter of General v General, 31
AD3d 551, 552; Matter of Wilson v Smith, 24 AD3d 562, 563; Matter of Rudy v Mazzetti, 5 AD3d 777, 778; Matter of Dungee
v Simmons, 307 AD2d 312, 312-313). Here, the paternal grandmother of the now
14-year-old child, who has supported and cared for the child since she was four
months old with no contribution from the mother, satisfied her burden of
establishing extraordinary circumstances on the basis of an "extended
disruption of custody" during which the mother had "voluntarily
relinquished care and control of the child" to the paternal grandmother
(Domestic Relations Law § 72[2][b]; see Matter of Carton v Grimm, 51 AD3d 1111,
1113, lv denied 10 NY3d 716; Matter of Traci M.S. v
Darlene C., 37 AD3d 1083, 1084; cf. Matter of Hyde v King, 47 AD3d 813, 815;
Matter of Tolbert v Scott, 42 AD3d 548, 549).
Inasmuch
as the Family Court is in the best position to evaluate the testimony,
character, temperament, and sincerity of the parties, its findings are entitled
to great weight and should not be set aside where they have a sound and
substantial basis in the record (see Matter of Miller v Shaw, 51 AD3d 927, lv deniedNY3d, 2008 NY Slip Op 83074 [2008]; Matter of
Garcia v Perez, 48 AD3d 812, 813; Matter of Fishburne
v Teelucksingh, 34 AD3d 804, 805; Matter of Cambridge
v Cambridge, 13 AD3d 443, 444; Matter of Rudy v Mazzetti,
5 AD3d 777, 778). The Family Court's determination that the best interests of the
child require that she remain in the custody of the paternal grandmother has
such a basis. Accordingly, its determination must be affirmed.
SANTUCCI,
J.P., DILLON, DICKERSON and CHAMBERS, JJ., concur.
ENTER:
James
Edward Pelzer
Clerk
of the Court