The Third Department, reversing Family Court, determined grandmother (petitioner) did not demonstrate extraordinary circumstances justifying the award of custody of the child to her. Despite mother’s move to Florida while the child remained with grandmother, the proof did not demonstrate either a prolonged separation from mother or mother’s relinquishment of care and control. The decision includes a detailed explanation of the relevant law:
While petitioner demonstrated that the child continuously resided with her for an 11-month period following the mother’s move to Florida, she failed to proffer sufficient evidence to establish that this was a prolonged separation of the mother and the child during which the mother voluntarily relinquished care and control of the child to her. Indeed, petitioner’s testimony demonstrated that the mother maintained consistent contact with the child throughout her 11-month residence in Florida. In particular, petitioner stated that the mother regularly called the child, visited the child over Christmas and paid for petitioner and the child to fly to Florida over the child’s April vacation.
With respect to voluntary relinquishment, petitioner merely stated that she and the mother had discussed the mother’s move to Florida, but had never discussed whether the mother intended the child to move with her. In stark contrast, the mother testified that, prior to moving, she and petitioner had a discussion about the child remaining in New York only until such time as she had secured employment and prepared suitable living arrangements for herself and the child in Florida. Further, the mother testified that, after she was established in Florida, she only allowed the child to remain in New York because the child had asked to stay through the end of the school year. Despite that Family Court did not make any express credibility determinations resolving the conflicting testimony of petitioner and the mother, this Court’s fact-finding authority is as broad as that of Family Court … . In an exercise of that broad fact-finding authority, we find the mother’s account, which demonstrates that she did not intend to cede care and control of the child to petitioner, to be the more credible one.
Moreover, petitioner offered little to no evidence as to her role, if any, in making important decisions affecting the child’s life. Matter of Donna SS. v Amy TT., 2017 NY Slip Op 02710, 3rd Dept 4-6-17
FAMILY LAW (GRANDMOTHER DID NOT DEMONSTRATE A PROLONGED SEPARATION OF THE CHILD FROM MOTHER OR THE MOTHER’S RELINQUISHMENT OF CONTROL AND CARE, CUSTODY SHOULD NOT HAVE BEEN AWARDED TO GRANDMOTHER)/CUSTODY (GRANDMOTHER DID NOT DEMONSTRATE A PROLONGED SEPARATION OF THE CHILD FROM MOTHER OR THE MOTHER’S RELINQUISHMENT OF CONTROL AND CARE, CUSTODY SHOULD NOT HAVE BEEN AWARDED TO GRANDMOTHER)