At page 1585 Determining parent's superior right to custody11 citing cases“may have 'enduring consequences' for the parties”
- Matter of Craig v. Thomas, 246 A.D.3d 1493 (N.Y. App. Div. 4th Dep't 2026).publishedThus, the grandmother's challenge to the court's finding of no extraordinary circumstances is not affected by the subsequent order entered on consent ( see generally Matter of Gorski v Phalen [appeal No. 2], 187 AD3d 1670 , 1671 [4th Dept…
- Matter of Turner v. Est. of Laura Katherine Jane Turner, 223 A.D.3d 744 (N.Y. App. Div. 2d Dep't 2024).published"Once a court makes a finding that extraordinary circumstances exist" to conclude that a parent relinquished his or her otherwise superior right to custody as compared to a nonparent, "that issue cannot be revisited in a subsequent proceed…
- Matter of Gorski v. Phalen, 187 A.D.3d 1670 (N.Y. App. Div. 4th Dep't 2020).publishedThe later consent order renders moot the father's challenge to the court's finding regarding the child's best interests ( see Matter of Wallace v Eure , 181 AD3d 1329, 1329 [4th Dept 2020]; Matter of Daniels v Jones , 144 AD3d 1420, 1420 […
- Matter of Martinez-Saroff v. Martinez-Saroff, 2019 NY Slip Op 5457 (N.Y. App. Div. 4th Dep't 2019).publishedHere, contrary to the mother's sole contention on appeal, we conclude that Family Court properly determined that petitioners met their burden of proving the existence of extraordinary circumstances and, thus, that they had standing to seek…
- Green v. Green, 139 A.D.3d 1384 (N.Y. App. Div. 4th Dep't 2016).published “It is well established that, as between a parent and a nonparent, the parent has a superior right to custody that cannot be denied unless the nonparent establishes that the parent has relinquished that right because of ‘surrender, abandon…
- Donegan v. Torres, 126 A.D.3d 1357 (N.Y. App. Div. 4th Dep't 2015).published In conducting its best interests analysis, Family Court found that the mother’s judgment was impaired to a degree that made her unfit to be a custodian of the child, a finding that “may have ‘enduring consequences’ for the parties” (Matter…
- Stent v. Schwartz, 133 A.D.3d 1302 (N.Y. App. Div. 4th Dep't 2015).published The fact that respondents moved between various temporary residences with the child for some time after being evicted from their apartment is not, by itself, sufficient to establish unfitness (see Matter of Mildred PP. v Samantha QQ., 110…
- Donegan, Vincent v. Torres, Damari, No. CAF 13-01367 (N.Y. App. Div. 4th Dep't Mar. 20, 2015).published
Other citing cases
- Stent, Richard v. Schwartz, Mary, No. CAF 14-01082 (N.Y. App. Div. 4th Dep't Nov. 20, 2015).published
v.
Tracy Cole, and Serie Cole, Respondent In the Matter of Serie Cole v. Tracy Cole, and Linda Van Dyke, Appellant-Respondent In the Matter of Tracy Cole v. Linda M. Van Dyke, Appellant-Respondent, and Serie Cole
Appeals from an order of the Family Court, Cattaraugus County (Judith E. Samber, Ref.), entered January 2, 2013 in proceedings pursuant to Family Court Act article 6. The order, among other things, granted Linda Van Dyke and Serie Cole joint custody of the subject child and designated Serie Cole as the primary residential parent.
It is hereby ordered that said appeal taken by Tracy Cole is unanimously dismissed, the appeal taken by Linda Van Dyke insofar as it concerns primary residential custody and visitation is dismissed, and the order is otherwise affirmed without costs.
[*1585] Memorandum: In February 2009, petitioners Linda Van Dyke (mother), Tracy Cole (father), and Serie Cole, the father’s wife, stipulated to an order granting Cole custody of the mother’s and the father’s child, with unsupervised visitation to the mother. The order provided that the mother or the father could petition for custody of the child once the child was discharged from out-of-home treatment. In late 2009 and early 2010, the mother and the father filed petitions seeking custody of the child, while Cole filed a petition seeking an order requiring visitation between the mother and the child to be supervised. After a trial, Family Court entered an order granting joint custody of the child to Cole and the mother, designating Cole as the primary residential parent, and granting the mother unsupervised visitation, and the mother and the father now appeal from that order. We note, however, that an order was subsequently entered upon stipulation of the parties regarding custody and visitation of the child.
We reject the contention of the attorney for the child that the mother’s appeal in its entirety is moot because a subsequent order was entered in this case. The mother contends, inter alia, that the court erred in finding extraordinary circumstances warranting consideration of the best interests of the child. “It is well established that, as between a parent and a nonparent, the parent has a superior right to custody that cannot be denied unless the nonparent establishes that the parent has relinquished that right because of ‘surrender, abandonment, persisting neglect, unfitness or other like extraordinary circumstances’ ” (Matter of Gary G. v Roslyn P., 248 AD2d 980, 981 [1998], quoting Matter of Bennett v Jeffreys, 40 NY2d 543, 544 [1976]). Once a court makes a finding that extraordinary circumstances exist, that issue cannot be revisited in a subsequent proceeding seeking to modify custody (see Matter of Guinta v Doxtator, 20 AD3d 47, 48, 51 [2005]) and, thus, such a finding may have “enduring consequences” for the parties (Matter of New York State Commn. on Jud. Conduct v Rubenstein, 23 NY3d 570, 577-578 [2014]). We therefore conclude that the mother’s challenge to the court’s determination with respect to extraordinary circumstances is not moot.
We conclude that the court properly determined that Cole met her burden of establishing the existence of extraordinary circumstances warranting consideration of the best interests of the child (see Gary G., 248 AD2d at 981). The mother continually demonstrated an inability or unwillingness to place the child’s best interests above that of the mother’s husband, who had various mental health issues and refused treatment and[*1586] medication. The mother testified that she saw no reason to restrict her husband’s access to the child, and continually ignored court orders prohibiting her husband from having contact with the child. Based on the mother’s inability to provide a safe home environment for the child, we conclude that the court’s finding of extraordinary circumstances was proper.
The mother’s appeal insofar as she contends that the court erred in designating Cole as the primary residential parent, and the father’s appeal in which he contends that the court erred in granting the mother unsupervised visitation with the child, are moot (see Matter of Morgia v Horning, 119 AD3d 1355, 1355 [2014]).
Present — Centra, J.P, Fahey, Whalen and DeJoseph, JJ.