Jenny L.S. v. Nicole M.

Appeal from an order of the Family Court, Jefferson County (Peter A. Schwerzmann, J.), entered April 17, 2006 in a proceeding pursuant to Family Court Act article 6. The order awarded custody of the child to respondent and visitation to petitioner. It is hereby ordered that the order so appealed from be and the same hereby is reversed on the law without costs, the petition is granted and custody is awarded to petitioner. Memorandum: We agree with petitioner, the child’s biological mother, that Family Court erred in awarding custody of her child to respondent, a nonrelative, because respondent failed to demonstrate the existence of extraordinary circumstances (see generally Matter of Bennett v Jeffreys, 40 NY2d 543, 544 [1976]). “It is well established that, as between a parent and a nonparent, the parent has a superior right to custody that cannot be denied unless the non parent 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 [1998], quoting Bennett, 40 NY2d at 544). Without such a finding, “ ‘the inquiry ends’ ” (Matter of Lynda A.H. v Diane T.O., 243 AD2d 24, 27 [1998], lv denied 92 NY2d 811 [1998], quoting Matter of Male Infant L., 61 NY2d 420, 427 [1984]). A finding of extraordinary circumstances is rare, and the circumstances must be such that they “drastically affect the welfare of the child” (Bennett, 40 NY2d at 549). “[T]he courts and the law [are] powerless to supplant parents except for griev [1216] ous cause or necessity” (id. at 546), or “ ‘gross misconduct’ ” (id. at 547). A parent will not be deprived of his or her right to custody “merely because a court or social agency believes it can decide more wisely than the parent or believes it has found someone to better raise the child” (Male Infant L., 61 NY2d at 427). Here, petitioner was voluntarily separated from her child for nine months when she moved from Virginia to New York to seek a more affordable living situation. During that period of time, she maintained regular telephone contact with her child and visited with her on four occasions. Although petitioner voluntarily relinquished physical custody of her child to respondent during that nine-month period, it is undisputed that she did so solely for the purpose of allowing respondent to place the child in daycare, and the evidence established that such daycare placement never occurred. “[T]he fact that [petitioner] agreed that [respondent] should have physical custody of the child or placed the child in the custody of [respondent] is' not sufficient, by itself, to deprive the parent of custody” (Matter of Michael G.B. v Angela L.B., 219 AD2d 289, 292-293 [1996]). In our view, the court’s conclusion that petitioner “has been only marginally and sporadically involved in the child’s life for the past four or more years” is not supported by the record. We conclude that respondent failed to present evidence establishing “surrender, abandonment, persisting neglect, unfitness or other like extraordinary circumstances” (Bennett, 40 NY2d at 544). We therefore reverse the order, grant the petition and award custody of the child to petitioner. All concur except Martoche, J., who dissents and votes to affirm in the following memorandum.