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

504
CAF 12-02316
PRESENT: SCUDDER, P.J., CENTRA, FAHEY, SCONIERS, AND VALENTINO, JJ.


IN THE MATTER OF BEVERLY GRIFFIN,
PETITIONER-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

JESSICA GRIFFIN, RESPONDENT-APPELLANT.


MINDY L. MARRANCA, BUFFALO, FOR RESPONDENT-APPELLANT.

TERRANCE C. BRENNAN, BUFFALO, FOR PETITIONER-RESPONDENT.

MARY ANNE CONNELL, ATTORNEY FOR THE CHILDREN, BUFFALO.


     Appeal from an order of the Family Court, Erie County (Paul G.
Buchanan, J.), entered September 7, 2012 in a proceeding pursuant to
Family Court Act article 6. The order granted sole custody of
respondent’s children to petitioner.

     It is hereby ORDERED that the order so appealed from is
unanimously reversed on the law without costs and the matter is
remitted to Family Court, Erie County, for further proceedings on the
petition.

     Memorandum: On appeal from an order granting sole custody of the
subject children to petitioner, a nonparent, respondent mother
contends that Family Court erred in failing to conduct an evidentiary
hearing to determine whether extraordinary circumstances exist and, if
so, to determine the best interests of the children. We agree, and we
therefore reverse the order and remit the matter to Family Court for
the requisite evidentiary hearing. It is well settled 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). “ ‘[T]he
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 best interests of the child[ren]’ ” (Matter of
Ruggieri v Bryan, 23 AD3d 991, 992). Here, the court “deprived a
biological parent of custody of [her] child[ren] without the . . .
[requisite evidentiary] hearing” on the issues of extraordinary
circumstances and best interests (Matter of Stiles v Orshal, 290 AD2d
824, 825). Instead of conducting the hearing on the date it was to
                                 -2-                           504
                                                         CAF 12-02316

begin, the court asked the parents what witnesses would be called on
their behalf. When the parents responded that they would be
testifying but had no other witnesses, the court stated that it found
no triable issues of fact and granted the nonparent’s petition for
custody. Thus, the court failed to place the burden of proof on the
nonparent to prove that extraordinary circumstances exist. Finally,
we note that the home study on which the court relied was potentially
out of date when the court granted the petition.




Entered:   May 9, 2014                          Frances E. Cafarell
                                                Clerk of the Court
