SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

135 

CAF 12-01187 

PRESENT: SCUDDER, P.J., CENTRA, FAHEY, CARNI, AND VALENTINO, JJ.

 

 

IN THE MATTER OF SABRINA CAMPBELL, 

PETITIONER-RESPONDENT, 

V MEMORANDUM AND ORDER

MARGARET JANUARY, RESPONDENT-RESPONDENT, 

AND BENNIE CARTER, SR., RESPONDENT-APPELLANT. 

MARK D. FUNK, ROCHESTER, FOR RESPONDENT-APPELLANT. 

SERCU & SERCU LLP, PITTSFORD (LARA R. BADAIN OF COUNSEL), FOR

PETITIONER-RESPONDENT. 

M. THOMAS SCOTT & ASSOCIATES, GRAND ISLAND (MARY THOMAS SCOTT OF

COUNSEL), FOR RESPONDENT-RESPONDENT. 

SANFORD A. CHURCH, ATTORNEY FOR THE CHILD, ALBION. 

 

Appeal from an order of the Family Court, Orleans County (James

P. Punch, J.), entered May 15, 2012 in a proceeding pursuant to Family

Court Act article 6. The order, among other things, awarded sole

custody of the subject child to petitioner. 

It is hereby ORDERED that the order so appealed from is

unanimously affirmed without costs.

Memorandum: On appeal from an order granting sole custody of the

subject child to petitioner, a nonparent, respondent father contends

that there was no showing of extraordinary circumstances. We reject

that contention. 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; see Matter of Howard v

McLoughlin, 64 AD3d 1147, 1147). Here, the record establishes that

respondent mother placed the child with petitioner just days after his

birth in February 2010, and the father disputed that he was the father

of the child even after receiving the results of a DNA test confirming

that he was. The father did not seek custody of the child until the

child was almost one year old, after an order of filiation was

entered. The father visited the child for the first time in January

or February 2012, and had only six or seven visits before he stopped
-2- 135 

CAF 12-01187 

attending when the visits were moved to petitioner’s home around April

2012. The child has significant medical conditions and special needs

requiring various forms of treatment, and the father demonstrated that

he has no interest in learning about the child’s conditions and needs

and how to treat them (see Matter of Brault v Smugorzewski, 68 AD3d

1819, 1819; Matter of Ronald I. v James J., 53 AD3d 706, 707). We

therefore agree with Family Court that extraordinary circumstances

were present here. We note that the father additionally contends that

the court improperly shifted the burden of proof to him to establish

extraordinary circumstances when it ordered him to present his proof

first. That contention is not preserved for our review (see Matter of

Canfield v McCree, 90 AD3d 1653, 1653-1654), and is without merit in

any event. The court’s determination establishes that it was aware

that petitioner “bore the burden of proof regardless of the order of

presentation” of the proof (Matter of Scala v Parker, 304 AD2d 858,

859).

Contrary to the father’s further contention, the court did not

err in ordering supervised visitation. Courts have broad discretion

in determining whether visits should be supervised, and we conclude

that there is a sound and substantial basis in the record to support

the court’s determination (see Matter of Chilbert v Soler, 77 AD3d

1405, 1406, lv denied 16 NY3d 701). The father is presently unable to

address the child’s medical conditions and special needs due to his

inability to understand them or his indifference to them. 

Entered: February 7, 2014 Frances E. Cafarell

Clerk of the Court