The Third Department, reversing Family Court, over a two-justice dissent, determined that the evidence did not support removing the child from the mother’s custody:
Although a prolonged separation between a parent and child may support a finding of extraordinary circumstances… , here, the limited record does not warrant a finding of extraordinary circumstances on this basis. The grandmother was the primary physical custodian for most of the younger child’s life, but there is no claim or evidence that the mother abdicated her responsibilities, and the record indicates that she had unsupervised parenting time with both children since 2004 and has been a joint custodian since at least December 2014 … . The history of neglect is relevant …, but the mother’s history — though tragic — was remote and there was no evidence or claim that she has failed to comply with the recommendations and obtain the treatment offered by DSS in recent times or that she has failed to remain involved in the children’s lives … . … While we acknowledge that Family Court had due cause for concern, absent extraordinary circumstances, we necessarily must find that the mother is entitled to retain custody of the younger child … . Although certainly not dispositive, it is important to recognize that the attorneys for the children have both supported the mother’s appeal.
Even were we to accept that the prior history established a basis for finding extraordinary circumstances, given that the grandmother allowed the children to reside with the mother since September 2015 and refused to resume her role as primary physical custodian, there has clearly been a change of circumstances … . The record otherwise shows that the mother has provided a stable home and appropriate medical care for the younger child, who has maintained excellent grades in school and participates in positive extracurricular activities, such as the boy scouts. From our reading of the Lincoln hearing, we do not get the impression that the younger child’s testimony was coached. As such, we would also conclude that the placement of physical custody with the mother is in the younger child’s best interests. Matter of Connie VV. v Cheryl XX., 2017 NY Slip Op 08913, Third Dept 12-21-17
FAMILY LAW (CUSTODY, RECORD DID NOT SUPPORT REMOVING CHILD FROM MOTHER’S CUSTODY, FAMILY COURT REVERSED (THIRD DEPT))/CUSTODY (FAMILY LAW, RECORD DID NOT SUPPORT REMOVING CHILD FROM MOTHER’S CUSTODY, FAMILY COURT REVERSED (THIRD DEPT))