                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered:    July 14, 2016                   520051
                                                        521049
________________________________

In the Matter of PAULA
   CRISELL,
                    Appellant,
      v

BARRY FLETCHER JR. et al.,
                    Respondents.

(Proceeding No. 1.)
________________________________             MEMORANDUM AND ORDER

In the Matter of BARRY R.
   FLETCHER SR. et al.,
                    Respondents,
      v

BARRY FLETCHER JR.,
                      Respondent,
     and

PAULA CRISELL,
                      Appellant.

(Proceeding No. 2.)
________________________________


Calendar Date:   June 2, 2016

Before:    McCarthy, J.P., Garry, Lynch, Devine and Aarons, JJ.

                              __________


     Teresa C. Mulliken, Harpersfield, for appellant.

     Christine McCue, Central Bridge, attorney for the child.

                              __________
                              -2-                520051
                                                 521049

Lynch, J.

      Appeals (1) from an order of the Family Court of Delaware
County (Becker, J.), entered October 20, 2014, which, among other
things, dismissed petitioner's application, in proceeding No. 1
pursuant to Family Ct Act article 6, to modify a prior order of
custody, and (2) from an order of said court, entered April 7,
2015, which, among other things, partially granted petitioners'
application, in proceeding No. 2 pursuant to Family Ct article 6,
for an order of custody.

      Paula Crisell (hereinafter the mother) and respondent Barry
Fletcher Jr. (hereinafter the father) are the parents of a son
born in 2005. Pursuant to a May 2012 order, the father had sole
legal and physical custody of the child and the mother had
parenting time on alternating weekends, holidays and a two week
period during the summers. In June 2012, the mother's husband
passed away and she moved from Delaware County to Herkimer County
with her two daughters from that marriage. Despite a drive of
about 2½ hours and a requirement that she provide the
transportation, the mother continued to exercise her parenting
time until July 2013. According to the mother, at that point the
father stopped communicating with her, ignoring phone calls and
text messages. In April 2014, after being informed by a
representative of the Delaware County Department of Social
Services that the child had been temporarily removed from the
father's home, the mother commenced proceeding No. 1 to modify
the prior custody order, seeking to have the child live with her.
Shortly thereafter, the child was placed with the paternal
grandparents, petitioners Barry R. Fletcher Sr. and Sandra L.
Fletcher (hereinafter collectively referred to as the
grandparents), who live in Sullivan County. In September 2014,
the grandparents commenced proceeding No. 2 seeking residential
custody of the child so that the child could receive enhanced
services that were available through the school district in
Sullivan County, but ostensibly not available in Delaware County
where the father resides.

      On September 24, 2014, Family Court combined the
proceedings and initiated a fact-finding hearing on both
                              -3-                520051
                                                 521049

petitions. After the mother rested, Family Court granted the
father's motion to dismiss the mother's petition, joined by both
the grandparents and the attorney for the child, finding a
"failure to make out a prima facie case to support a move. And
it is that failure that actually creates the extraordinary
circumstance." A further hearing was held on February 20, 2015,
for what the court described as a "fact finding" on the
grandparents' petition. After hearing testimony from both the
paternal grandmother and the mother, the court determined that a
joint custody arrangement between the father and the
grandparents, with residential custody to the grandparents, would
be in the child's best interests. The mother appeals both
orders.

      We reverse. The mother contends that Family Court
erroneously dismissed her custody modification petition because
it utilized the wrong legal standard. We agree. A parent
seeking to modify an existing custody order must "demonstrate[] a
change in circumstances that warrants an inquiry into the best
interests of the child" (Matter of Schlegel v Kropf, 132 AD3d
1181, 1182 [2015]). In deciding the father's dismissal motion,
Family Court was required to accept the mother's evidence as
true, afford her every favorable inference and resolve
credibility questions in her favor (see Matter of Caswell v
Caswell, 134 AD3d 1175, 1176 [2015]). Given this standard, the
mother's evidence demonstrated that the father withheld
visitation from her for approximately nine months and that the
child had been placed in respite care with the Department of
Social Services and was currently living with the grandparents,
circumstances that readily constitute a change in circumstances
warranting a reexamination of the best interests of the child
(see Matter of Normile v Stalker, ___ AD3d ___, ___, 2016 NY Slip
Op 04270, *2 [2016]; Matter of Bush v Miller, 136 AD3d 1238, 1239
[2016]). Notably, the mother resumed visitation with the child
once she learned that he was in respite care. Instead of
reexamining what would be in the child's best interests under the
circumstances presented, Family Court opted to treat this matter
as a relocation application governed by the standards outlined in
Matter of Tropea v Tropea (87 NY2d 727 [1996]). The flaw in that
analysis is that the mother was not the custodial parent at the
                               -4-                520051
                                                  521049

time of her relocation to Herkimer County in June 2012 (id. at
739-741). Given the above, we conclude that Family Court erred
in dismissing the mother's petition and that proceeding No. 1
should be remitted to proceed to an examination of the best
interests of the child (see Matter of Martin v Mills, 94 AD3d
1364, 1366 [2012]; Matter of Lowe v O'Brien, 81 AD3d 1093, 1094
[2011], lv denied 16 NY3d 713 [2011]).

      We further conclude that because the outcome of the
mother's petition could affect the grandparents' petition,
proceeding No. 2 must also be remitted. A parent has a superior
claim to custody over all others "in the absence of surrender,
abandonment, persistent neglect, unfitness, disruption of custody
over an extended period of time or other extraordinary
circumstances" (Matter of Battisti v Battisti, 121 AD3d 1196,
1196-1197 [2014] [internal quotation marks and citations
omitted]). In a custody dispute between a parent and a
nonparent, the best interests of the child become relevant only
after the nonparent has demonstrated extraordinary circumstances
to overcome the parent's overriding custody claim (see Matter of
Suarez v Williams, 26 NY3d 440, 446 [2015]; Matter of Eric X. v
Keri Y., 138 AD3d 1202, 1204 [2016]).

      Here, the issue of extraordinary circumstances remain to be
determined (compare Matter of Elizabeth SS. v Gracealee SS., 135
AD3d 995 [2016]; Matter of Lina Y. v Audra Z., 132 AD3d 1086
[2015]). Glaringly absent from this record is any affidavit or
testimony from the father who, at this juncture, remains the sole
custodial parent.1 Nor does the record provide the outcome of
the child protective report filed against the father's wife,
which led to the removal of the child from their home in the
first instance. While the record certainly indicates that the
grandparents are attending to the child's needs and have
coordinated enhanced services for the child through Sullivan
County, no inquiry has yet been made as to whether such services
would be available in Herkimer County, where the mother resides.



    1
        The father also failed to file a brief on this appeal.
                              -5-                  520051
                                                   521049

     McCarthy, J.P., Garry, Devine and Aarons, JJ., concur.



      ORDERED that the orders are reversed, on the law, without
costs, and matters remitted to the Family Court of Delaware
County for further proceedings not inconsistent with this Court's
decision.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
