        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

497
CAF 15-01557
PRESENT: SMITH, J.P., CARNI, DEJOSEPH, NEMOYER, AND TROUTMAN, JJ.


IN THE MATTER OF JASON GREELEY,
PETITIONER-APPELLANT,

                    V                             MEMORANDUM AND ORDER

GRETCHEN TUCKER AND KARA GREELEY,
RESPONDENTS-RESPONDENTS.


HEATHER A. TOMES, DELEVAN, FOR PETITIONER-APPELLANT.

FERN S. ADELSTEIN, OLEAN, FOR RESPONDENT-RESPONDENT KARA GREELEY.

JENNIFER M. LORENZ, ATTORNEY FOR THE CHILDREN, LANCASTER.


     Appeal from an order of the Family Court, Cattaraugus County
(Michael L. Nenno, J.), entered August 10, 2015 in a proceeding
pursuant to Family Court Act article 6. The order, inter alia,
granted custody of the subject children to respondent Gretchen Tucker.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: On appeal from an order that, inter alia, granted
custody of the subject children to respondent maternal grandmother
(grandmother), petitioner father contends that the grandmother failed
to establish the requisite extraordinary circumstances. We reject
that contention.

     It is well settled that, “as between a parent and 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 Stent v Schwartz,
133 AD3d 1302, 1303, lv denied 27 NY3d 902 [internal quotation marks
omitted]; see Matter of Bennett v Jeffreys, 40 NY2d 543, 544). The
evidence at the hearing established that, since the father and
respondent mother separated in 2007, the father never had primary
physical placement of the children and did not file a petition for
custody for another seven years. Twice since then, when the mother
was unable to have primary physical placement of the children, the
father consented to award the grandmother custody of the children.
During that time, he played a minimal role in the children’s lives and
made no contact with them for as long as 1½ years at a time. The
grandmother, by contrast, has provided them with a stable home, where
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                                                         CAF 15-01557

they reside with their mother, half brother, and uncle. According
deference to Family Court’s factual findings and credibility
determinations (see Matter of Mildred PP. v Samantha QQ., 110 AD3d
1160, 1161-1162), we conclude that the court properly found
extraordinary circumstances inasmuch as the father failed to maintain
substantial, repeated and continuous contact with the children (see
Matter of Carpenter v Puglese, 94 AD3d 1367, 1368-1369; see also
Matter of Laura M. v Nicole N., 143 AD3d 722, 723).

     Although the father correctly contends that the court made no
determination with respect to the best interests of the children, we
conclude that reversal is not required on that ground. The record is
sufficient for this Court to make such a determination, and we do so
in the interest of judicial economy and the children’s well-being (see
Matter of Cole v Nofri, 107 AD3d 1510, 1512, appeal dismissed and lv
denied 22 NY3d 1083; Matter of Howell v Lovell, 103 AD3d 1229, 1231).
Upon our review of the relevant factors (see Fox v Fox, 177 AD2d 209,
210), we conclude that it is in the children’s best interests to award
the grandmother primary physical custody. Although the custodial
arrangement has been unstable throughout the children’s lives, the
grandmother has continuously provided them with a stable home whenever
needed. The grandmother’s country home was recently renovated and the
children have their own bedrooms, whereas the father over the years
has resided with a series of paramours and has acknowledged that he
does not have a plan if his current living situation changes. While
living with the grandmother, the children have developed a close
relationship with their half brother who also lives there. The
grandmother has facilitated the children’s schooling and
extracurricular activities, whereas the father did not know the names
of their teachers or pediatrician. Moreover, the grandmother is
financially stable, owns her own home, and is employed full time as a
registered nurse.

     The father failed to preserve for our review his further
contention that the Attorney for the Children failed to advocate for
the children’s position concerning custody or to request a Lincoln
hearing, and thus provided ineffective assistance of counsel (see
Matter of Lopez v Lugo, 115 AD3d 1237, 1237-1238). The father also
failed to preserve for our review his contention that the court should
have held a Lincoln hearing inasmuch as he did not request one (see
Matter of Thillman v Mayer, 85 AD3d 1624, 1625).




Entered:   May 5, 2017                          Frances E. Cafarell
                                                Clerk of the Court
