Arza Rayches Feldman, Uniondale, NY (Steven Feldman of counsel), for appellant.
Gail Jacobs, Great Neck, NY, for respondent Kadi A. Maddox.
Theresa Kloeckener, Lynbrook, NY, for respondent Scott E. Maddox.
Thomas R. Villecco, Jericho, NY, attorney for the child.
CHERYL E. CHAMBERS, J.P., LEONARD B. AUSTIN, JOSEPH J. MALTESE, and COLLEEN D. DUFFY, JJ.
Opinion
Appeal from an order of the Family Court, Nassau County (Merik R. Aaron, J.), dated December 17, 2014. The order dismissed, without a hearing, the grandmother's custody petition for lack of standing.
ORDERED that the order is affirmed, without costs or disbursements.
In March 2014, the petitioner, who is the subject child's paternal grandmother, filed a petition seeking custody of the subject child, who resided with the mother. Following several court appearances, the Family Court dismissed the grandmother's custody petition, without a hearing, for lack of standing.
“In a child custody dispute 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 due to surrender, abandonment, persistent neglect, unfitness, or other extraordinary circumstances” (Matter of Bailey v. Carr, 125 A.D.3d 853, 853, 4 N.Y.S.3d 121 ; see Matter of Bennett v. Jeffreys, 40 N.Y.2d 543, 548, 387 N.Y.S.2d 821, 356 N.E.2d 277 ). The burden of proof is on the nonparent to “prove the existence of extraordinary circumstances in order to demonstrate standing when seeking custody against a child's parent” (Matter of Suarez v. Williams, 26 N.Y.3d 440, 448, 23 N.Y.S.3d 617, 44 N.E.3d 915 ; see Matter of Santiago v. Henderson, 122 A.D.3d 866, 867, 996 N.Y.S.2d 686 ). Without proof of such extraordinary circumstances, an inquiry into the best interests of the child is not triggered (see Matter of Bennett v. Jeffreys, 40 N.Y.2d at 548, 387 N.Y.S.2d 821, 356 N.E.2d 277 ; Matter of Bailey v. Carr, 125 A.D.3d at 853, 4 N.Y.S.3d 121 ; Matter of Santiago v. Henderson, 122 A.D.3d at 867, 996 N.Y.S.2d 686 ). “ ‘A hearing to determine the issue of standing is not necessary where there are no triable issues of fact raised in the submitted papers' ” (Matter of Moskowitz v. Moskowitz, 128 A.D.3d 1070, 1070, 9 N.Y.S.3d 674, quoting Matter of Roberts v. Roberts, 81 A.D.3d 1117, 1118, 917 N.Y.S.2d 370 ).
Here, the grandmother's petition failed to sufficiently allege the existence of extraordinary circumstances. Accordingly, the Family Court properly dismissed the petition, without a hearing, based upon her lack of standing (see Matter of Moskowitz v. Moskowitz, 128 A.D.3d at 1070, 9 N.Y.S.3d 674 ; Matter of Santiago v. Henderson, 122 A.D.3d at 867, 996 N.Y.S.2d 686 ; Matter of Roberts v. Roberts, 81 A.D.3d at 1118, 917 N.Y.S.2d 370 ).