                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: February 18, 2016                    520401
________________________________

In the Matter of EBONY C.
   BROWN,
                    Respondent-
                    Appellant,
      v

TAKEIMA COMER,                               MEMORANDUM AND ORDER
                     Appellant-
                     Respondent,
     and

JAHLIRE RAHEEM NICHOLSON,
                    Respondent.
________________________________


Calendar Date:    January 5, 2016

Before:    McCarthy, J.P., Egan Jr., Lynch and Clark, JJ.

                              __________


     Lisa K. Miller, McGaw, for appellant-respondent.

     Alena E. Van Tull, Binghamton, for respondent-appellant.

     Christopher A. Pogson, Binghamton, for respondent.

     Larisa Obolensky, Delhi, attorney for the child.

                              __________


Clark, J.

      Cross appeals from an order of the Family Court of Broome
County (Connerton, J.), entered January 13, 2015, which, among
other things, granted petitioner's application, in a proceeding
pursuant to Family Ct Act article 6, to modify a prior order of
custody.
                              -2-                520401

      Petitioner (hereinafter the mother) and respondent Jahlire
Raheem Nicholson (hereinafter the father) are the unmarried
parents of a daughter (born in July 2011). Shortly before the
child's birth, the mother moved from New York City to the City of
Binghamton, Broome County, where she resided with her cousin,
respondent Takeima Comer. Approximately a month after the
child's birth, Comer asked the mother to move out and live with
another cousin in Binghamton so that Comer could become eligible
to obtain social services benefits for the child. Pursuant to a
stipulation by the mother and Comer, a September 2011 order
granted them joint legal custody with Comer having primary
physical custody and the mother visitation, which she exercised
liberally. By pro se petition in October 2013 and eventually an
amended petition prepared by counsel in March 2014, the mother
sought to modify the prior order to grant her sole legal and
physical custody with visitation provided to the father.

      Following a hearing, Family Court found that Comer – a
nonparent – had established extraordinary circumstances, but,
nonetheless, the mother had sufficiently shown that it was now in
the child's best interests to reside with the mother. The court
thus granted the petition and awarded the mother custody with
visitation to the father. Comer appeals, urging that Family
Court erred in determining that it was in the child's best
interests to grant the mother custody, and the mother appeals
from so much of the order as found that Comer established
extraordinary circumstances.

      "[A] parent has a claim of custody of his or her child,
superior to that of all others, in the absence of surrender,
abandonment, persistent neglect, 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]; see Matter of
Sweeney v Sweeney, 127 AD3d 1259, 1260 [2015]). "[T]he nonparent
bears the heavy burden of proving extraordinary circumstances and
the existence of a prior consent order of custody in favor of the
nonparent is not sufficient to demonstrate extraordinary
circumstances" (Matter of Ramos v Ramos, 75 AD3d 1008, 1010
[2010] [internal quotation marks and citations omitted]; see
Matter of McBride v Springsteen-El, 106 AD3d 1402, 1403 [2013]).
                                -3-                520401

"The extraordinary circumstances analysis must consider 'the
cumulative effect' of all issues present in a given case" (Matter
of Pettaway v Savage, 87 AD3d 796, 797 [2011], lv denied 18 NY3d
801 [2011], quoting Matter of Melody J. v Clinton County Dept. of
Social Servs., 72 AD3d 1359, 1362 [2010], lv denied 15 NY3d 703
[2010]), including, among others, "the length of time the child
has lived with the nonparent, the quality of that relationship
and the length of time the . . . parent allowed such custody to
continue without trying to assume the primary parental role"
(Matter of Bevins v Witherbee, 20 AD3d 718, 719 [2005]). Since a
finding of extraordinary circumstances may have enduring
consequences for the parent (see Matter of Renee TT. v Britney
UU., 133 AD3d 1101, 1106 [2015]; Matter of Ray v Eastman, 117
AD3d 1114, 1114 [2014]; Matter of Cusano v Milewski, 68 AD3d
1272, 1273 [2009]), it can be challenged on appeal even if, as
here, the parent ultimately obtained custody.

      Initially, Family Court incorrectly relied upon Domestic
Relations Law § 72 (2) – i.e., a prolonged separation for at
least 24 continuous months – as the basis for its finding of
extraordinary circumstances. As thoroughly explained in a recent
Court of Appeals opinion, Domestic Relations Law § 72 "defines an
alternative type of extraordinary circumstance applicable only to
grandparents" (Matter of Suarez v Williams, 26 NY3d 440, 448
[2015] [emphasis added]). Inasmuch as Comer is not the child's
grandparent, Domestic Relations Law § 72 is unavailable to her as
a method to achieve standing in this matter.1 Furthermore, after
reviewing the record, we agree with the mother that Comer was
unable to meet her heavy burden of proving extraordinary
circumstances.

        Here, the proof at the hearing established that the mother,


    1
        This is not to say that the amount of time that the child
lived with Comer should not have been considered by Family Court
as a part of its extraordinary circumstances analysis (see Matter
of Bennett v Jeffreys, 40 NY2d 543, 546 [1976]; Matter of Bevins
v Witherbee, 20 AD3d at 719), but simply a clarification that
Family Court's sole reliance upon Domestic Relations Law § 72 (2)
constitutes an error of law under these circumstances.
                              -4-                520401

who was 22 years old and had another young child, was in a
difficult situation when pregnant and living at the residence of
a former boyfriend in New York City. Comer agreed to allow her
to stay in her apartment in Binghamton until she could get back
on her feet. Although the mother did not want to leave the child
with Comer, she agreed to move into Comer's sister's residence so
that Comer could get social services benefits for the child –
benefits that would otherwise not be available to Comer should
the mother continue to reside with the child. After a flood
damaged the apartment of Comer's sister, however, the mother
returned to live with Comer for about three months in late 2011
and paid Comer to care for the child while she worked.

      Significantly, the mother remained substantially and
actively involved in the child's life as she took steps to
stabilize her own life. She obtained a job and she had the child
stay with her on days when she was not working. On days that she
worked, she spent most of her nonworking, awake hours at Comer's
apartment with the child. While the child developed a close
relationship with Comer, the child clearly bonded to the mother,
and the child referred to her, not Comer, as her mother.
Additionally, the mother provided Comer with monetary support to
help with the child's expenses, had some involvement in the
child's medical and dental care and indicated that her further
involvement was prevented by Comer's lack of cooperation.

      After her life and living situations stabilized in 2013,
the mother told Comer she wanted custody and, when Comer refused,
the mother eventually commenced a series of proceedings.2
Although two years had passed between the consent order and the
mother's first petition seeking full custody, during such time
the mother had meaningful and substantial interaction with the
child. She remained actively involved in the child's life in


    2
        The first petition was dismissed for failing to allege a
change in circumstances; however, such proof is not necessary
when a parent seeks to regain custody from a nonparent and there
has not been a prior judicial determination of extraordinary
circumstances (see Matter of Dumond v Ingraham, 129 AD3d 1131,
1132-1133 [2015]).
                              -5-                  520401

many ways and on a daily basis, and she did not completely
abdicate her parental rights and responsibilities (see Matter of
Mildred PP. v Samantha QQ., 110 AD3d 1160, 1161 [2013]; compare
Matter of Aida B. v Alfredo C., 114 AD3d 1046, 1049 [2014]).
Thus, the contact between the mother and the child and the
absolute lack of any proof concerning other possible factors such
as persistent neglect or unfitness preclude a finding of
extraordinary circumstances.

      Although Comer's challenge to Family Court's determination
regarding the child's best interests is academic since such issue
is considered only if extraordinary circumstances are first
proven (see Matter of Gardner v Gardner, 69 AD3d 1243, 1245
[2010]), we note that, had we reached such issue, there is a
sound and substantial basis in the record supporting Family
Court's determination. Comer's alternative request for
visitation was properly denied by Family Court (see Matter of
Hayley PP. [Christal PP.–Cindy QQ.], 77 AD3d 1133, 1135 [2010],
lv denied 15 NY3d 716 [2010]; Gulbin v Moss-Gulbin, 45 AD3d 1230,
1231 [2007], lv denied 10 NY3d 705 [2008]).

     McCarthy, J.P., Egan Jr. and Lynch, JJ., concur.



      ORDERED that the order is modified, on the law and the
facts, without costs, by reversing so much thereof as determined
that respondent Takeima Comer established extraordinary
circumstances, and, as so modified, affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
