Vazquez v. Velez

It is hereby ordered that the order so appealed from is unanimously reversed on the law without costs and the matter is remitted to Family Court, Erie County, for further proceedings in accordance with the following memorandum: Petitioner-respondent father appeals from an order granting physical custody of his child to petitioner maternal grandmother (grandmother), and joint custody to the father and grandmother. It is well established that a parent has a superior right to custody to that of a nonparent (see generally Matter of Bennett v Jeffreys, 40 NY2d 543, 546-548 [1976]). Specifically, “[t]he State may not deprive a parent of the custody of a child absent surrender, abandonment, persisting neglect, unfitness or other like extraordinary circumstances” (id. at 544). Here, Family Court erred in failing to determine whether extraordinary circumstances exist before proceeding to determine that it is in the best interests of the child to grant physical custody to the grandmother and joint custody to the father and grandmother (see id. at 548). Because “the record is insufficient to enable us to make our own determination with respect to whether extraordinary circumstances exist” (Matter of Howard v McLoughlin, 64 AD3d 1147, 1148 [2009]), we remit the matter to Family Court to make that determination, upon affording the parties the opportunity to submit additional evidence if they be so advised. In the event that the court determines that extraordinary circumstances exist, the court must then consider the best interests of the child in making a custody determination (see Matter of McArdle v McArdle, 1 AD3d 822, 823 [2003]). [1560] Present — Scudder, EJ., Centra, Garni, Lindley and Martoche, JJ.