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

398
CAF 15-00012
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, CURRAN, AND TROUTMAN, JJ.


IN THE MATTER OF TERRY R. GREEN,
PETITIONER-RESPONDENT,

                    V                              MEMORANDUM AND ORDER

JONATHAN M. GREEN, SR., RESPONDENT-APPELLANT.


WAGNER & HART, LLP, OLEAN (JANINE FODOR OF COUNSEL), FOR
RESPONDENT-APPELLANT.

LEGAL ASSISTANCE OF WESTERN NEW YORK, INC., OLEAN (JESSICA ANDERSON OF
COUNSEL), FOR PETITIONER-RESPONDENT.

LYLE T. HAJDU, ATTORNEY FOR THE CHILD, LAKEWOOD.


     Appeal from an order of the Family Court, Cattaraugus County
(Michael L. Nenno, J.), entered December 2, 2014. The order, among
other things, awarded custody of the subject child to petitioner.

     It is hereby ORDERED that said appeal insofar as it concerns
visitation is unanimously dismissed, the order is reversed on the law
without costs and the petition is dismissed.

     Memorandum: In this proceeding pursuant to Family Court Act
article 6, respondent father appeals from a December 2014 order
granting custody of the subject child to petitioner stepmother, with
supervised visitation to the father. The order was entered following
a trial, upon a finding of extraordinary circumstances. We were
informed at oral argument of this appeal that an order was
subsequently entered upon agreement of the parties regarding custody
and visitation of the child, and the stepmother and the Attorney for
the Child assert that the father’s appeal has thereby been rendered
moot in its entirety. We reject that contention. The father
contends, inter alia, that Family Court erred in finding the existence
of extraordinary circumstances to warrant consideration of 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’ ” (Matter of Gary G. v Roslyn P., 248 AD2d 980, 981,
quoting Matter of Bennett v Jeffreys, 40 NY2d 543, 544). “[O]nce the
preferred status of the birth parent under Bennett . . . has been lost
by a judicial determination of extraordinary circumstances,” that
                                 -2-                           398
                                                         CAF 15-00012

issue cannot be revisited in a subsequent proceeding seeking to modify
custody (Matter of Guinta v Doxtator, 20 AD3d 47, 51) and, “thus, such
a finding may have ‘enduring consequences’ for the parties” (Van Dyke
v Cole, 121 AD3d 1584, 1585, quoting Matter of New York State Commn.
on Jud. Conduct v Rubenstein, 23 NY3d 570, 578). We therefore
conclude that the father’s challenge to the court’s determination with
respect to extraordinary circumstances is not moot (see id.).

     We conclude that the court erred in determining that the
stepmother met her burden of establishing the existence of
extraordinary circumstances to warrant consideration of the best
interests of the child (cf. Gary G., 248 AD2d at 981-982). We
therefore reverse the order and dismiss the petition.

     The father’s appeal insofar as it pertains to visitation must be
dismissed as moot (see Van Dyke, 121 AD3d at 1586).




Entered:   May 6, 2016                          Frances E. Cafarell
                                                Clerk of the Court
