State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: July 16, 2015 517494 

_________________________________

In the Matter of ELEANOR P.

YANDON,

Respondent,

v

TORI J. BOISVERT, MEMORANDUM AND ORDER

Appellant,

et al.,

Respondent.

(And Another Related Proceeding.)

_________________________________

Calendar Date: June 1, 2015

Before: Lahtinen, J.P., Lynch, Devine and Clark, JJ.

__________

Reginald H. Bedell, Elizabethtown, for appellant.

Claudia A. Russell, Willsboro, for respondent.

David Rudgers, Ticonderoga, attorney for the child.

__________

Lahtinen, J.P.

Appeal from an order of the Family Court of Essex County

(Meyer, J.), entered August 28, 2013, which, among other things,

granted petitioner's application, in a proceeding pursuant to

Family Ct Act article 6, to modify a prior order of custody and

visitation.

Petitioner (hereinafter the grandmother) is the maternal

grandmother of a child (born in 2008) whose parents are

respondent Ivy L. Boisvert (hereinafter the mother) and
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respondent Tori J. Boisvert (hereinafter the father). The

parents had repeatedly split, reconciled and moved resulting in

the child frequently residing with the grandmother for months at

a time. In July 2011, an order entered on consent provided for

respondents to have joint legal and physical custody and the

grandmother to have visitation. By January 2012, the mother and

the child were residing with the grandmother, but the mother

later moved out leaving the child with the grandmother. 

Petitions were filed, including the grandmother seeking custody

in February 2012. Following a hearing, Family Court rendered a

detailed decision in which it concluded that the grandmother had

established extraordinary circumstances and, upon then

considering the best interests of the child, the court awarded

the grandmother sole legal and primary physical custody with

liberal visitation times for the mother and the father. The

father appeals, arguing that the finding of extraordinary

circumstances lacked a sound and substantial basis in the record.

"It is well settled that a parent has a claim of custody of

his or her child, superior to that of all others, in the absence

of surrender, abandonment, persistent neglect, unfitness,

disruption of custody over an extended period of time or other

extraordinary circumstances" (Matter of Battisti v Battisti, 121

AD3d 1196, 1196-1197 [2014] [internal quotation marks and

citations omitted]; see Matter of Marcus CC. v Erica BB., 107

AD3d 1243, 1244 [2013], appeal dismissed 22 NY3d 911 [2013]). 

"The burden of proving such extraordinary circumstances rests

with the nonparent seeking custody and, if established, the

controlling consideration in determining custody is the best

interests of the child" (Matter of Melody J. v Clinton County

Dept. of Social Servs., 72 AD3d 1359, 1360 [2010], lv denied 15

NY3d 703 [2010] [citations omitted]; see Matter of Daphne OO. v

Frederick QQ., 88 AD3d 1167, 1168 [2011]). Proof regarding

extraordinary circumstances may include, among other things, that

"the parent has neglected 'to maintain substantial, repeated and

continuous contact with' the child[] or make plans for [her]

future" (Matter of Sweeney v Sweeney, 127 AD3d 1259, 1260 [2015],

quoting Matter of Mildred PP. v Samantha QQ., 110 AD3d 1160, 1161

[2013]; see Matter of Carpenter v Puglese, 94 AD3d 1367, 1368

[2012]; Matter of Wayman v Ramos, 88 AD3d 1237, 1239 [2011], lv

dismissed 18 NY3d 868 [2012]).
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Here, there was evidence credited by Family Court that the

child had chronic health and dental issues. The father ignored

such issues and did not participate in obtaining professional

care for these issues. The grandmother was actively involved in

obtaining medical and dental care for the child. After the child

had eye surgery, the father neglected to ensure that she received

required follow-up care, and the grandmother eventually brought

the child for such treatment. There was proof that the father

was verbally and physically abusive of the mother when the child

was present, as well as verbally abusive of the child. According

to the mother, the father would ignore the child and any

parenting responsibilities, opting instead to play video games

and frequently being absent for extended periods during the few

times the family was intact. She also stated that he abused

various drugs, spending money on such substances rather than food

and medicine needed by the family. The child had been evaluated

in preschool as needing various special services, and the father

failed to participate in any meetings with educators regarding

the child's needs. The grandmother was in contact on a weekly

basis with the child's teacher. The child has spent a

considerable part of her life living with the grandmother and

there was evidence that she faired better when in the

grandmother's care. According deference to Family Court's

credibility determinations (see Matter of Melody J. v Clinton

County Dept. of Social Servs., 72 AD3d at 1360), there was ample

proof that the father neglected the child's developmental,

educational and medical needs, he was frequently absent and

abdicated any parental responsibility, allowing such role to be

filled by the grandmother, and he engaged in conduct detrimental

to the child's well-being. The finding of extraordinary

circumstances is supported by a sound and substantial basis in

the record. 

The father does not contest Family Court's best interests

analysis and, in any event, the record fully supports the court's

determination regarding that issue.

Lynch, Devine and Clark, JJ., concur.
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ORDERED that the order is affirmed, without costs.

ENTER:

Robert D. Mayberger

Clerk of the Court