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

934
CAF 13-00785
PRESENT: SCUDDER, P.J., CENTRA, CARNI, LINDLEY, AND WHALEN, JJ.


IN THE MATTER OF JEREMY A. MCNEIL,
PETITIONER-APPELLANT,

                    V                             MEMORANDUM AND ORDER

MICHAEL DEERING, BETH L. DEERING AND TINA
DEERING, RESPONDENTS-RESPONDENTS.
(APPEAL NO. 1.)


CHARLES J. GREENBERG, AMHERST, FOR PETITIONER-APPELLANT.

KATHY L. QUENCER, ATTORNEY FOR THE CHILDREN, WATERTOWN.


     Appeal from an amended order of the Family Court, Jefferson
County (Peter A. Schwerzmann, A.J.), entered April 12, 2013 in a
proceeding pursuant to Family Court Act article 6. The amended order
dismissed the amended petition for modification of custody.

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

     Memorandum: In appeal No. 1, petitioner father appeals from an
amended order that dismissed his amended petition seeking modification
of the existing custody arrangement (2012 modification petition).
Pursuant to a stipulated order, respondents Michael Deering and Tina
Deering, the children’s maternal grandparents, have joint legal
custody of the children along with the father and respondent Beth L.
Deering, the children’s mother, and the grandparents have primary
physical residence of the children with visitation to the father. By
the amended petition in appeal No. 1, the father sought sole custody
of the children. In appeal No. 2, the father appeals from an amended
order that dismissed his petition alleging that the mother violated a
visitation order. In appeal Nos. 3 and 4, the father appeals from
amended orders that dismissed his petitions seeking an order of
protection against the grandfather and the grandmother, respectively.
Finally, in appeal No. 5, the father appeals from an order that
dismissed his second petition seeking, inter alia, modification of the
existing custody arrangement (2013 modification petition) on the
ground that Vermont, rather than New York, is the more convenient
forum. We note at the outset that the father has failed to address on
appeal any issues with respect to the propriety of the amended orders
in appeal Nos. 2, 3 and 4, and therefore is deemed to have abandoned
any such issues (see Ciesinski v Town of Aurora, 202 AD2d 984, 984).
                                 -2-                           934
                                                         CAF 13-00785

     The father contends in appeal No. 1 that Family Court erred in
failing to apply the extraordinary circumstances standard when
evaluating the 2012 modification petition and should have granted the
2012 petition because it would be in the best interests of the
children for the father to have sole custody. We agree with the
father that the court erred in failing to conduct the threshold
inquiry whether extraordinary circumstances existed here to warrant
the continuation of primary physical residence with the grandparents
(see Matter of Howard v McLoughlin, 64 AD3d 1147, 1147). “The
nonparent has the burden of establishing that extraordinary
circumstances exist even where, as here, ‘the prior order granting
custody of the child to [the] nonparent[ ] was made upon consent of
the parties’ ” (id.). We need not remit the matter to Family Court to
make that determination, however, because the record here is adequate
to enable us to do so (cf. id. at 1148). We conclude that there are
the requisite extraordinary circumstances, based on the father’s
history of domestic violence, including an incident that occurred in
the presence of one of the children and resulted in at least three
orders of protection and incarceration, his history of substance
abuse, and his sporadic contact with the children (see Matter of
Roberta W. v Carlton McK., 112 AD3d 729, 730; Matter of Barnes v
Evans, 79 AD3d 1723, 1724, lv denied 16 NY3d 711; Matter of Campo v
Chapman, 24 AD3d 439, 439-440, lv denied 6 NY3d 709). Nevertheless,
we further conclude that the father failed to demonstrate a change in
circumstances to warrant an inquiry into the best interests of the
children on the issue of custody because the record does not support
his contention that there was a deterioration in the parties’
relationships and that the grandparents interfered with his scheduled
visitation or telephone access (see Matter of Kashif II. v Lataya KK.,
99 AD3d 1075, 1076).

     In appeal No. 5, the father contends that the court erred in
refusing to retain jurisdiction over the 2013 modification petition
because, contrary to the court’s determination, New York is the more
convenient forum. We reject that contention, inasmuch as there is a
sound and substantial basis in the record to support the court’s
determination that Vermont is the more appropriate forum (see Matter
of Frank MM. v Lorain NN., 103 AD3d 951, 952).




Entered:   September 26, 2014                  Frances E. Cafarell
                                               Clerk of the Court
