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

1022
CAF 14-01082, CAF 14-01052
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, WHALEN, AND DEJOSEPH, JJ.


IN THE MATTER OF RICHARD STENT,
PETITIONER-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

MARY SCHWARTZ AND DAN SCHWARTZ,
RESPONDENTS-APPELLANTS.


BRIDGET L. FIELD, ROCHESTER, FOR RESPONDENT-APPELLANT DAN SCHWARTZ.

KELIANN M. ARGY, ORCHARD PARK, FOR RESPONDENT-APPELLANT MARY SCHWARTZ.

JACQUELINE M. GRASSO, ATTORNEY FOR THE CHILD, BATAVIA.


     Appeals from an order of the Family Court, Genesee County (Eric
R. Adams, J.), entered June 4, 2014 in a proceeding pursuant to Family
Court Act article 6. The order granted custody of the subject child
to petitioner with visitation to respondents.

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

     Memorandum: Respondents, the mother and the father of the child
who is the subject of this proceeding, both appeal from an order that
granted custody of the child to petitioner, the child’s half brother.
Initially, we agree with the mother and the father that Family Court
erred in drawing a negative inference against them based on their
failure to testify. The mother and the father were both called as
witnesses and gave testimony for petitioner, and they were also
questioned by their own attorneys and the Attorney for the Child. The
court therefore erred in drawing a negative inference against them
inasmuch as they did in fact testify at the hearing (see Matter of
Raymond D., 45 AD3d 1415, 1415-1416).

     We nevertheless agree with the court’s determination that
petitioner met his burden of establishing that extraordinary
circumstances exist to warrant an inquiry into whether it is in the
best interests of the child to award him custody (see Matter of Scala
v Parker, 304 AD2d 858, 859; see generally Matter of Bennett v
Jeffreys, 40 NY2d 543, 548). It is well-settled that, “as between a
parent and 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’ ”
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                                            CAF 14-01082, CAF 14-01052

(Matter of Gary G. v Roslyn P., 248 AD2d 980, 981, quoting Bennett, 40
NY2d at 544). Here, the evidence established that the mother and the
father changed residences frequently over a period of 18 months, and
they were evicted from one residence and were homeless for several
months, living in a tent or their vehicle. The child changed schools
five times in four school districts over that same time period and,
with each change in school, the child missed at least several days and
sometimes several weeks of school. Indeed, we note that “[u]nrebutted
evidence of excessive school absences [is] sufficient to establish . .
. educational neglect” (Matter of Gabriella G. [Jeannine G.], 104 AD3d
1136, 1137 [internal quotation marks omitted]). The evidence also
supports the court’s conclusion that the child had poor hygiene.
Thus, the record establishes that the mother and the father have
exhibited “behavior evincing utter indifference and irresponsibility,”
and the court therefore properly concluded that extraordinary
circumstances exist (Matter of Male Infant L., 61 NY2d 420, 427; see
Matter of Darrow v Darrow, 106 AD3d 1388, 1391-1392; Scala, 304 AD2d
at 859-860; see also Matter of Braun v Decicco, 117 AD3d 1453, 1454,
lv dismissed in part and denied in part 24 NY3d 927).

     It is well settled that, “once extraordinary circumstances are
found, the court must then make the disposition that is in the best
interest[s] of the child” (Bennett, 40 NY2d at 548), and we agree with
the court that the child’s best interests are served by awarding
petitioner custody of the child with visitation to the mother and the
father (see Matter of Vincent A.B. v Karen T., 30 AD3d 1100, 1101, lv
denied 7 NY3d 711). A best interests analysis considers numerous
factors, “ ‘including the continuity and stability of the existing
custody arrangement, the quality of the child’s home environment and
that of the [party] seeking custody, the ability of each [party] to
provide for the child’s emotional and intellectual development, the
financial status and ability of each [party] to provide for the child,
and the individual needs and expressed desires of the child’ ” (Matter
of Michael P. v Judi P., 49 AD3d 1158, 1159; see generally Fox v Fox,
177 AD2d 209, 210). Petitioner lived with the child and the mother
and the father until 2012, and he has had regular visitation with the
child since May 2013. Petitioner has full-time employment and his own
residence and, unlike the mother and the father, he has shown the
ability to budget and prioritize to provide for the child. Petitioner
has also planned for the child’s schooling and medical needs. We
therefore conclude on the record before us that the court’s custody
determination has a sound and substantial basis in the record (see
Matter of Loukopoulos v Loukopoulos, 68 AD3d 1470, 1472-1473; Vincent
A.B., 30 AD3d at 1101-1102; see generally Matter of Goossen v Goossen,
72 AD3d 1591, 1591).

     All concur except CARNI and DEJOSEPH, JJ., who dissent and vote to
reverse in accordance with the following memorandum: We respectfully
dissent. In our view, Family Court erred in granting custody of the
subject child to petitioner, and we therefore would reverse the order
and dismiss the petition.

     While we agree with the majority that the court erred in drawing
a negative inference against respondents on the basis that they
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                                           CAF 14-01082, CAF 14-01052

“declined to testify at the fact-finding hearing” inasmuch as
respondents in fact testified at the hearing (see Matter of Raymond
D., 45 AD3d 1415, 1415-1416), we conclude that the court erred in
awarding custody of the child to petitioner because petitioner failed
to demonstrate the existence of extraordinary circumstances (see
generally Matter of Bennett v Jeffreys, 40 NY2d 543, 544). “A finding
of extraordinary circumstances is rare, and the circumstances must be
such that they ‘drastically affect the welfare of the child’ ” (Matter
of Jenny L.S. v Nicole M., 39 AD3d 1215, 1215, lv denied 9 NY3d 801,
quoting Bennett, 40 NY2d at 549; see Matter of Aylward v Bailey, 91
AD3d 1135, 1136). Absent a threshold showing of extraordinary
circumstances, “the question of best interests does not arise and the
natural parent[s] must be awarded custody” (Matter of Male Infant L.,
61 NY2d 420, 429; see Matter of Jody H. v Lynn M., 43 AD3d 1318,
1318).

      Here, we conclude that the evidence at the hearing concerning
respondents’ alleged deficiencies as parents fell short of
establishing unfitness, persisting neglect, or similar misconduct
constituting extraordinary circumstances (see Aylward, 91 AD3d at
1136-1137; Matter of Culver v Culver, 190 AD2d 960, 961-962; see also
Jenny L.S., 39 AD3d at 1216; cf. Matter of Braun v Decicco, 117 AD3d
1453, 1454, lv dismissed in part and denied in part 24 NY3d 927). The
fact that respondents moved between various temporary residences with
the child for some time after being evicted from their apartment is
not, by itself, sufficient to establish unfitness (see Matter of
Mildred PP. v Samantha QQ., 110 AD3d 1160, 1161-1162; Matter of Darrow
v Darrow, 106 AD3d 1388, 1392; see generally Male Infant L., 61 NY2d
at 430), and the record does not establish that their living situation
was ever unsafe (cf. Matter of Van Dyke v Cole, 121 AD3d 1584, 1585-
1586; Darrow, 106 AD3d at 1392), or that the child’s medical care was
being neglected (see Matter of Jerry Q. v Malissa R., 287 AD2d 810,
811).

     In our view, the child’s school absences and hygiene do not rise
to the level of extraordinary circumstances, and petitioner’s
testimony that the child would be better off living with him also does
not establish extraordinary circumstances (see Bennett, 40 NY2d at
548; Jody H., 43 AD3d at 1319). In view of petitioner’s failure to
demonstrate the existence of extraordinary circumstances, the court
erred in awarding him custody of the child (see generally Male Infant
L., 61 NY2d at 429; Jody H., 43 AD3d at 1318).




Entered:   November 20, 2015                    Frances E. Cafarell
                                                Clerk of the Court
