State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: January 7, 2016 518260 

________________________________

In the Matter of ELIZABETH SS.,

Respondent,

v MEMORANDUM AND ORDER

GRACEALEE SS.,

Appellant,

et al.,

Respondent.

________________________________

Calendar Date: November 19, 2015

Before: Lahtinen, J.P., McCarthy, Egan Jr., Lynch and 

 Devine, JJ.

__________

Allen E. Stone Jr., Vestal, for appellant.

Paul R. Corradini, Elmira, for Elizabeth SS., respondent.

Michael P. Graven, Owego, attorney for the child.

__________

Lynch, J.

Appeal from an order of the Family Court of Chemung County

(Argetsinger, J.H.O.), entered December 19, 2013, which granted

petitioner's application, in a proceeding pursuant to Family Ct

Act article 6, to modify a prior order of custody.

Petitioner (hereinafter the mother) is the mother and

respondent Gracealee SS. (hereinafter the grandmother) is the

paternal grandmother of a child born in 2007. The mother and

respondent Eric SS. (hereinafter the father) were married but, in

2010, the mother left the marital residence due to alleged

domestic violence and moved into a domestic violence shelter,
-2- 518260 

leaving the child in the grandmother's care. Thereafter, in June

2010, Family Court awarded legal and physical custody of the

child to the grandmother with limited parenting time to the

mother. The parties continued to appear before the court

periodically, and additional orders were entered that, insofar as

is relevant here, increased the mother's parenting time and, in

January 2011, awarded the mother joint legal custody to be shared

with the father and the grandmother. In June 2013, the mother

petitioned for full custody of the child. Following a factfinding hearing, Family Court granted physical custody to the

mother, joint legal custody to the mother and father, and allowed

the grandmother and the father limited visitation and parenting

time. The grandmother now appeals.1 

The grandmother contends that Family Court erred when it

determined that there were no extraordinary circumstances to

award custody to a nonparent. It is well settled that, in the

absence of extraordinary circumstances such as surrender,

abandonment, persistent neglect, unfitness or an extended period 

of custody disruption, a parent has a claim of custody to his or

her child superior to all others (see Matter of Lina Y. v Audra

Z., 132 AD3d 1086, 1086 [2015]; Matter of Ferguson v Skelly, 80

AD3d 903, 904 [2011], lv denied 16 NY3d 710 [2011]). Here, since

no finding of extraordinary circumstances had previously been

made, the grandmother bore "the heavy burden of first

establishing the existence of extraordinary circumstances to

overcome the . . . parents' superior right of custody" (Matter of

Aida B. v Alfredo C., 114 AD3d 1046, 1048 [2014]; see Matter of

Rumpff v Schorpp, 133 AD3d 1109, 1110 [2015]). Only upon such a

showing would Family Court proceed to address the issue of the

child's best interests (Matter of Rumpff v Schorpp, 133 AD3d at

1110). Relevant here, "a prolonged separation of the . . .

parent and the child for at least [24] continuous months during

which the parent voluntarily relinquished care and control of the

child and the child resided in the household of [a] grandparent"

may constitute a disruption of custody sufficient to demonstrate

extraordinary circumstances (Domestic Relations Law § 72 [2] [b];

1 The father has submitted a letter to this Court to advise

that he supports the grandmother's appeal. 
-3- 518260 

accord Matter of Ferguson v Skelly, 80 AD3d at 904; see Matter of

Gale v Gray, 39 AD3d 903, 904 [2007]). "An order placing a child

in a nonparent's custody upon a parent's consent is neither a

judicial finding nor an admission of extraordinary circumstances"

(Matter of Rumpff v Schorpp, 133 AD3d at 1110 [citation omitted];

see Matter of Liz WW. v Shakiria XX., 128 AD3d 1118, 1120 [2015],

lv dismissed 25 NY3d 1195 [2015]). Moreover, if the parent

spends the period of separation trying to regain custody of his

or her child, that period would not necessarily support a finding

of extraordinary circumstances (see Matter of Gale v Gray, 39

AD3d at 904-905). 

Here, the mother initially allowed the grandmother to care

for the child because the child was not allowed at the domestic

violence shelter – a decision characterized by Family Court as a

"temporary emergency situation." In July 2010, the mother

relocated approximately one hour away to be closer to her

parents. She began living with a childhood friend and worked

caring for his children during the day. That relationship turned

from platonic to romantic, they had a child and they are now

engaged to be married. During the three years that the

grandmother had primary physical custody of the child, the mother

endeavored to establish a stable environment for herself and the

child and repeatedly attempted to regain custody. As noted by

Family Court, the grandmother was not supportive of the mother's

efforts to see the child, and the grandmother's repeated

allegations that the mother was not fit were deemed to be

unfounded. Although the attorney for the child contends that

Family Court should have given greater weight to the testimony of

the therapist who sees the child at his school, it is well

settled that, in custody cases, Family Court's assessment of the

reliability of evidence and its credibility determinations are

entitled to our deference (see Matter of Ettari v Peart, 110 AD3d

1256, 1257-1258 [2013]). In our view, there is a sound and

substantial basis in the record for Family Court's determination

that the grandmother did not demonstrate the existence of

extraordinary circumstances (see Matter of Mildred PP. v Samantha

QQ., 110 AD3d 1160, 1161 [2013]). 

Lahtinen, J.P., McCarthy, Egan Jr. and Devine, JJ., concur.
-4- 518260 

ORDERED that the order is affirmed, without costs. 

ENTER:

Robert D. Mayberger

Clerk of the Court