SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

497 

CAF 15-01557 

PRESENT: SMITH, J.P., CARNI, DEJOSEPH, NEMOYER, AND TROUTMAN, JJ. 

 

IN THE MATTER OF JASON GREELEY, 

PETITIONER-APPELLANT, 

V MEMORANDUM AND ORDER

GRETCHEN TUCKER AND KARA GREELEY, 

RESPONDENTS-RESPONDENTS. 

HEATHER A. TOMES, DELEVAN, FOR PETITIONER-APPELLANT.

FERN S. ADELSTEIN, OLEAN, FOR RESPONDENT-RESPONDENT KARA GREELEY.

JENNIFER M. LORENZ, ATTORNEY FOR THE CHILDREN, LANCASTER. 

 

Appeal from an order of the Family Court, Cattaraugus County

(Michael L. Nenno, J.), entered August 10, 2015 in a proceeding

pursuant to Family Court Act article 6. The order, inter alia,

granted custody of the subject children to respondent Gretchen Tucker. 

It is hereby ORDERED that the order so appealed from is

unanimously affirmed without costs.

Memorandum: On appeal from an order that, inter alia, granted

custody of the subject children to respondent maternal grandmother

(grandmother), petitioner father contends that the grandmother failed

to establish the requisite extraordinary circumstances. We reject

that contention. 

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” (Matter of Stent v Schwartz,

133 AD3d 1302, 1303, lv denied 27 NY3d 902 [internal quotation marks

omitted]; see Matter of Bennett v Jeffreys, 40 NY2d 543, 544). The

evidence at the hearing established that, since the father and

respondent mother separated in 2007, the father never had primary

physical placement of the children and did not file a petition for

custody for another seven years. Twice since then, when the mother

was unable to have primary physical placement of the children, the

father consented to award the grandmother custody of the children. 

During that time, he played a minimal role in the children’s lives and

made no contact with them for as long as 11⁄2 years at a time. The

grandmother, by contrast, has provided them with a stable home, where
-2- 497 

CAF 15-01557 

they reside with their mother, half brother, and uncle. According

deference to Family Court’s factual findings and credibility

determinations (see Matter of Mildred PP. v Samantha QQ., 110 AD3d

1160, 1161-1162), we conclude that the court properly found

extraordinary circumstances inasmuch as the father failed to maintain

substantial, repeated and continuous contact with the children (see

Matter of Carpenter v Puglese, 94 AD3d 1367, 1368-1369; see also

Matter of Laura M. v Nicole N., 143 AD3d 722, 723).

Although the father correctly contends that the court made no

determination with respect to the best interests of the children, we

conclude that reversal is not required on that ground. The record is

sufficient for this Court to make such a determination, and we do so

in the interest of judicial economy and the children’s well-being (see

Matter of Cole v Nofri, 107 AD3d 1510, 1512, appeal dismissed and lv

denied 22 NY3d 1083; Matter of Howell v Lovell, 103 AD3d 1229, 1231). 

Upon our review of the relevant factors (see Fox v Fox, 177 AD2d 209,

210), we conclude that it is in the children’s best interests to award

the grandmother primary physical custody. Although the custodial

arrangement has been unstable throughout the children’s lives, the

grandmother has continuously provided them with a stable home whenever

needed. The grandmother’s country home was recently renovated and the

children have their own bedrooms, whereas the father over the years

has resided with a series of paramours and has acknowledged that he

does not have a plan if his current living situation changes. While

living with the grandmother, the children have developed a close

relationship with their half brother who also lives there. The

grandmother has facilitated the children’s schooling and

extracurricular activities, whereas the father did not know the names

of their teachers or pediatrician. Moreover, the grandmother is

financially stable, owns her own home, and is employed full time as a

registered nurse.

The father failed to preserve for our review his further

contention that the Attorney for the Children failed to advocate for

the children’s position concerning custody or to request a Lincoln

hearing, and thus provided ineffective assistance of counsel (see

Matter of Lopez v Lugo, 115 AD3d 1237, 1237-1238). The father also

failed to preserve for our review his contention that the court should

have held a Lincoln hearing inasmuch as he did not request one (see

Matter of Thillman v Mayer, 85 AD3d 1624, 1625).

Entered: May 5, 2017 Frances E. Cafarell

Clerk of the Court