Papers Numbered Summons, Petition, Affidavit & Exhibits Annexed 1 Notice of Motion, Affirmation & Exhibits Annexed 2 Notice of Cross Motion, Affirmation & Exhibits Annexed 3 Affirmation in Opposition & Exhibits Annexed 4 Affidavit in Opposition & Exhibits Annexed 5 Upon the foregoing papers and for the following reasons, the Motion to Dismiss by Respondent Eva P. (hereinafter “Mother”), for a dismissal of the Petition filed by Petitioner Robyn C. (hereinafter “Ms. C.”), is denied accordance with the following decision. By Final Order of Custody and Visitation dated September 8, 2009, the Kings County Family Court (Sheares, J.) granted the unmarried couple of Mother and Respondent William M. J. (hereinafter “Father”) joint legal custody with equal decision making authority over their Child, and physical custody to Mother with a detailed visitation schedule for Father. However, it is undisputed that Child has physically resided with Father and his fiance, Ms. C., since 2018, and visited with Mother on weekends. The undersigned presided over this family’s dispute for the first time in the beginning of 2018 when Mother sought court intervention to obtain a passport for Child to go on a school-wide Spanish immersion trip to Costa Rica. By April 17, 2018, Mother withdrew her Petition after the parties secured the Child’s passport to travel. Shortly thereafter, the Father filed his own Petition to modify the Custody Order seeking an award to him of sole legal and physical custody of the Child. Since no agreement was reached, litigation commenced on February 26, 2019 with Father’s direct testimony, and was adjourned to March 29, 2019 for an incamera proceeding with the Child. Because the Child was not brought to Court for the scheduled incamera, the matter was adjourned to the next scheduled trial date in May 2019. In the meantime, by Petition dated April 19, 2019, Ms. C. commenced the instant proceeding against the Mother and Father in Kings County Family Court, seeking to be appointed as the guardian of the now-teenage Child, alleging in part: The birth parents of the subject of the proceeding, Eva Jane P. and [Father], although living, should not be appointed guardian of the person of the child because: [the] parents are currently in a custody battle over the subject Child but the child has expressed a desire to [Ms. C.] for her to be guardian of her person. [She] also states the Respondent father, her fiance, is terminally ill and his condition is currently critical. At the time of the filing of the Petition, both the Father and the Child signed waivers and consents to Ms. C.’ guardianship. On that day, the Attorney for the Child (“AFC”) and Ms. C. appeared before the Hon. Kathleen Waterman, who noted that: the Father was seriously ill and dying of cancer; the Child has resided with Father and Ms. C. for a significant length of time; that the Child has serious issues with Mother and the parties were concerned that Mother would take the Child away from her current location. Judge Waterman entered a Temporary Order of Guardianship in favor of Ms. C., ordered fingerprints, and adjourned the matter to May 9, 2019 for return of process and for an appearance before the instant Judge. May the 9th was also the date scheduled by this Court for the continued hearing on the Father’s Petition to modify the prior Custody Order. On May 9, 2019, Ms. C. and Mother appeared with counsel, as well as the AFC, who reported that Father had tragically passed away two weeks prior and that Child was residing with Ms. C.. Mother consented to Child remaining in the paternal home with Ms. C. and the Court exhorted the parties to work out a co-parenting agreement. Thereafter, the AFC made an application for the Court to continue the Temporary Order of Guardianship in favor of Ms. C. for medical and educational issues, which was denied. The Court dismissed the Father’s Custody Petitions as abated and adjourned the matter to July 25, 2019 for further conference. On July 25, 2019, the AFC informed the Court that the Child wanted to remain with Ms. C., while Mother indicated that she wanted the Child to reside with her forthwith. By Notice of Motion dated September 13, 2019, the Mother moves to dismiss the Guardianship Petition arguing that Ms. C. does not have standing to seek guardianship of the Child because she has not sufficiently demonstrated the existence of any extraordinary circumstances in that the Mother has never surrendered, abandoned, neglected or relinquished her custody and care of the Child. In opposition, Ms. C. and the AFC argue that there is standing to request guardianship because not only has the Child continuously resided with her and the Father for several years and has developed a “strong emotional bond,” but the Child is a knowledgeable teenager who has herself expressed a strong desire to remain with her. By an unnecessarily voluminous Notice of Cross Motion dated October 18, 2019, the Attorney for the Child cross-moves for an order directing a forensic evaluation of the parties, an incamera interview with the Child, and an order granting Ms. C. a temporary guardianship for medical, educational and decision making authority while Child is in her care, pending an extraordinary circumstances hearing. The Court set a motion scheduled for submission on December 6, 2019, and adjourned the matter to January 16, 2020 for a decision on the motions. At this point, this Court disagrees with the Mother’s arguments. Family Court Act §661 gives jurisdiction over guardianship proceedings to the Family Court along with the Surrogate’s Court. Pursuant to the Surrogate’s Court’s Procedure Act §1703, “[a] petition for the appointment of a guardian for the person or property, or both, of an infant may be made by any person on behalf of the infant or[,] if the infant be over the age of fourteen years, it may be by the infant.” Where there is a dispute regarding a child’s custody, it is well settled that “as between a parent and nonparent, the parent has the superior right of custody that cannot be denied unless the nonparent establishes that the parent has relinquished that right due to surrender, abandonment, persistent neglect, unfitness or other extraordinary circumstances” (Matter of Roberta W. v. Carlton McK., 112 AD3d 729, 730 [2nd Dept. 2013]; see Matter of Joel T. v. Miriam T., 163 AD3d 828, 828-829 [2nd Dept. 2018]; Matter of Kaylub T. [Erik C.], 150 AD3d 862 [2nd Dept. 2017]; Matter of Dellolio v. Tracy, 35 AD3d 737, 738 [2nd Dept. 2006]). The burden of proof is on the nonparent to prove extraordinary circumstances in order to establish his or her standing to seek custody (see Matter of Linda S.M. v. Demetrius W., 160 AD3d 860, 861 [2nd Dept. 2018]; Matter of Rudy v. Mazzetti, 5 AD3d 777, 778 [2nd Dept. 2004]). Only where extraordinary circumstances are present will the Court consider the best interests of the child in awarding custody (see Matter of Bennett v. Jeffreys, 40 NY2d 543, 546 [1976]; Matter of Laura M. v. Nicole N., 143 AD3d 722 [2nd Dept. 2016]; cf. Matter of Revis v. Marzan, 100 AD3d 1004 [2nd Dept. 2012]). Applying these principles to the case at bar, the Mother’s Motion to facially dismiss the petition fails. The record reveals that Ms. C. claims to have resided with Father since the Child was approximately three years old. Both Ms. C. and the AFC contend that the Child has a “strong emotional bond” and wants to live with Ms. C.. While any person may petition for guardianship of an infant, as it relates to a natural parent, the Court must make the appropriate inquiries as to whether to deprive that parent of the right and responsibility to care for the child (see id.). Here, Father is deceased and Mother is currently the sole legal custodian of Child. Given the history of this case, it is clear that Mother and Father had an acrimonious relationship. Despite the animosity between the parties, it does not appear that Mother has relinquished any of her responsibility to care for, make decisions and nurture the Child. To the Child’s apparent annoyance, Mother is a consistent presence in her life, wants to continue making decisions for her and wants the Child to reside with her. Generally, a hearing to determine the issue of standing is not necessary where there are no triable issues of fact raised in the submitted papers (see Matter of Linda S.M. v. Demetrius W., 160 AD3d at 860). Given the emergency nature of Ms. C. initial application, the Court will excuse her failure to plead detailed extraordinary circumstances in her papers. Nevertheless, the law is quite clear that the Court must conduct a hearing to determine whether sufficient extraordinary circumstances exist to trigger a best interests inquiry (id.). At the hearing, Ms. C. has a high burden to prove that Mother has relinquished her right to be the Child’s custodian due to surrender, abandonment, persistent neglect, unfitness or other extraordinary circumstances (see Matter of Joel T., 163 AD3d at 828-829 [2nd Dept. 2018]; Matter of Kaylub T., 150 AD3d at 862). In accordance to the foregoing, the Mother’s motion to dismiss is denied at this time. As for the Attorney for the Child’s application for forensics and an incamera, this Court similarly denies such application as premature and will make that determination after the close of the extraordinary circumstances hearing (see Matter of Rudy v. Mazzetti, 5 AD3d at 778). During the pendency of the proceedings, this Court orders that the Child shall physically reside with Ms. C. with the Mother continuing to have weekend visitation with Child from Friday to Monday as well as other visitation as agreed upon between the parties. Ms. C. shall consult with Mother with respect to the Child’s medical, religious, residential and educational decisions, but the Mother shall retain sole decision making authority. NOTICE: Pursuant to Section 1113 of the Family Court Act, an appeal from this Order must be taken within 30 days of receipt of the Order by Appellant in Court, 35 days from the date of mailing of the Order to the Appellant by the Clerk of Court, or 30 days after service by a party or the Attorney for the Child upon the Appellant, whichever is earliest. Check applicable box: Order mailed on (specify date[s] and to whom mailed): Order received in court on (specify date[s] and to whom mailed): Dated: January 16, 2020 Brooklyn, New York
