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

743
CAF 14-01019
PRESENT: SMITH, J.P., PERADOTTO, DEJOSEPH, TROUTMAN, AND SCUDDER, JJ.


IN THE MATTER OF MADELYN THOMAS,
PETITIONER-RESPONDENT,

                    V                                MEMORANDUM AND ORDER

FELICIA SMALL, RESPONDENT-APPELLANT.
(APPEAL NO. 1.)


DAVID J. PAJAK, ALDEN, FOR RESPONDENT-APPELLANT.

WILLIAM D. BRODERICK, JR., ELMA, FOR PETITIONER-RESPONDENT.

JENNIFER PAULINO, ATTORNEY FOR THE CHILD, BUFFALO.


     Appeal from an order of the Family Court, Erie County (Michael F.
Griffith, A.J.), entered April 24, 2014 in a proceeding pursuant to
Family Court Act article 6. The order, inter alia, granted sole
custody of the subject child to petitioner.

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

     Memorandum: In appeal No. 1, respondent-petitioner mother
appeals from an order that, inter alia, granted the petition of
petitioner-respondent grandmother seeking to modify a prior consent
order by awarding the grandmother sole custody and primary physical
residence of the subject child. In appeal Nos. 2 and 3, the mother
appeals from orders that dismissed her petitions seeking to modify the
prior order by awarding her custody of the child. Contrary to the
mother’s contention in appeal No. 1, we conclude that Family Court
properly determined that the grandmother met her burden of proving the
existence of extraordinary circumstances and, thus, that she had
standing to seek custody of the child (see Matter of Suarez v
Williams, 26 NY3d 440, 446; Matter of Bennett v Jeffreys, 40 NY2d 543,
549-551). We also conclude that the court, upon carefully weighing
the appropriate factors (see generally Fox v Fox, 177 AD2d 209, 210),
properly determined that modifying the prior order by awarding the
grandmother sole custody and primary physical residence is in the best
interests of the child (see Matter of Rosso v Gerouw-Rosso, 79 AD3d
1726, 1727; Matter of Iris R. v Jose R., 74 AD3d 457, 457). Contrary
to the mother’s further challenge to the order in appeal No. 1, the
court did not improperly delegate its authority to schedule visitation
to the grandmother (see Matter of Dylan Mc. [Michelle M. Mc.], 105
AD3d 1049, 1049; cf. Matter of Nicolette I. [Leslie I.], 110 AD3d
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                                                         CAF 14-01019

1250, 1255; Matter of Taylor v Jackson, 95 AD3d 1604, 1604-1605), and
we thus reject the mother’s contention that the matter should be
remitted to the court to fashion a more specific visitation schedule
(see Matter of Moore v Kazacos, 89 AD3d 1546, 1547, lv denied 18 NY3d
806). If the mother is unable to obtain “access with the child as the
parties can agree and arrange” pursuant to the order in appeal No. 1,
she may file a petition seeking to enforce or modify the order (see
id.; see generally Gelling v McNabb, 126 AD3d 1487, 1487-1488).
Finally, to the extent that the mother contends in appeal Nos. 2 and 3
that the court erred in dismissing her petitions, we conclude that her
contention is without merit.




Entered:   September 30, 2016                   Frances E. Cafarell
                                                Clerk of the Court
