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

1169
CAF 14-01333
PRESENT: CARNI, J.P., LINDLEY, DEJOSEPH, CURRAN, AND TROUTMAN, JJ.


IN THE MATTER OF ZAKIYYAH WOLFFORD,
PETITIONER-APPELLANT,

                    V                               MEMORANDUM AND ORDER

ANTHONY STEPHENS, RESPONDENT-RESPONDENT.
----------------------------------------
IN THE MATTER OF ZAKIYYAH WOLFFORD,
PETITIONER-APPELLANT,

                    V

GAYLE BRYNETTE, RESPONDENT-RESPONDENT.


EVELYNE A. O’SULLIVAN, EAST AMHERST, FOR PETITIONER-APPELLANT.

BERNADETTE M. HOPPE, ATTORNEY FOR THE CHILD, BUFFALO.


     Appeal from an order of   the Family Court, Erie County (Margaret
O. Szczur, J.), entered June   18, 2014 in proceedings pursuant to
Family Court Act article 6.    The order, among other things, directed
that the subject child shall   continue to reside with respondent Gayle
Brynette.

     It is hereby ORDERED that the order so appealed from is
unanimously reversed on the law without costs, the petitions are
reinstated, and the matter is remitted to Family Court, Erie County,
for further proceedings in accordance with the following memorandum:
On appeal from an order directing, inter alia, that her child continue
to reside with his paternal grandmother, respondent Gayle Brynette
(grandmother), petitioner mother contends that Family Court erred in
failing to make a determination of extraordinary circumstances before
rendering a decision on the best interests of the child and that the
record does not support a finding of extraordinary circumstances. We
agree with the mother that the court erred in failing to make a
determination whether extraordinary circumstances existed to warrant
an inquiry into 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 . . . The nonparent has the burden of
proving that extraordinary circumstances exist, and until such
circumstances are shown, the court does not reach the issue of the
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                                                         CAF 14-01333

best interests of the child” (Matter of Gary G. v Roslyn P., 248 AD2d
980, 981 [internal quotation marks omitted]; see Matter of Howard v
McLoughlin, 64 AD3d 1147, 1147-1148). “The foregoing rule applies
even if there is an existing order of custody concerning that child
unless there is a prior determination that extraordinary circumstances
exist” (Gary G., 248 AD2d at 981; see Matter of Katherine D. v
Lawrence D., 32 AD3d 1350, 1351, lv denied 7 NY3d 717; Matter of
Vincent A.B. v Karen T., 30 AD3d 1100, 1101, lv denied 7 NY3d 711).

     Here, as in Howard, “there is no indication in the record that,
in the history of the parties’ litigation, the court previously made a
determination of extraordinary circumstances divesting the mother of
her superior right to custody” (64 AD3d at 1148). Furthermore,
because the hearing transcript, which was transcribed from an audio
recording, is riddled with “unintelligible” gaps in the testimony,
“the record is insufficient to enable us to make our own determination
with respect to whether extraordinary circumstances exist” (id.). We
therefore reverse the order, reinstate the petitions, and remit the
matter to Family Court to determine, following a hearing if necessary,
whether extraordinary circumstances exist.




Entered:   December 23, 2016                    Frances E. Cafarell
                                                Clerk of the Court
