Family Court, Queens County, May 31, 2017

Eric Bryan Perlmutter for petitioner.

Peter Christopher Lomtevas for Roxanne H., respondent.

Stephen Anthony Gargiulo, Attorney for the Child.

On June 5, 2016, Bhanmattie H. (hereinafter paternal grandmother) filed a petition seeking custody of her granddaughter, Sydney H., who is 14 years old. At the time, Sydney's biological father, Victor H., Jr. (hereinafter father), was deceased and Sydney was living with her biological mother, Roxanne H. (hereinafter mother). On September 26, 2016, after a Matter of Bennett v Jeffreys (40 NY2d 543 [1976]) hearing, Referee Marilyn Moriber found that the paternal grandmother had standing to pursue custody of her granddaughter. On May 16, 2017, pursuant to the Queens County Family Court Trial Part protocol, the [*2]matter was assigned to the court for trial.^[FN1] The trial was completed in one day during which only the paternal grandmother and the mother testified. Both the paternal grandmother and the mother seek primary residential and legal custody of Sydney. For the reasons set forth herein, the court awards primary residential and legal custody of Sydney to the paternal grandmother.

Sydney lived with her mother and father in the paternal grandparents' home since she was an infant. Around late 2003 to early 2004, due to marital discord, the mother moved out of the paternal grandparents' home. She took Sydney with her, but in less than two weeks' time, she returned Sydney to the father, who was still living in the paternal grandparents' home. In 2011, the mother and the father divorced. In connection with the divorce proceedings, the mother consented to the father having primary residential custody of Sydney. Although the mother had visitation, including overnights, she rarely exercised her right to visit with Sydney, and she infrequently, if ever, contributed financially to Sydney's expenses.

Sydney lived with her father and the paternal grandmother until her father's death in December 2014. After the paternal grandmother told the mother about the father's death, on the day after Christmas, the mother showed unexpectedly at the paternal grandmother's home and took Sydney to live with her{**56 Misc 3d at 1042} and her new family.^[FN2] Up until that time, the paternal grandmother was Sydney's primary caregiver. Since the mother refused to allow the paternal grandmother to visit with Sydney, the paternal grandmother sought court intervention. A judge in family court ordered the paternal grandmother to have visitation with Sydney. During those visits, Sydney was sad. She told her grandmother that she was being mistreated by her mother and her mother's husband, and that she did not want to live with her mother anymore.^[FN3] Sydney told the paternal grandmother that the mother and her stepfather were constantly fighting and, when anything went wrong in the home, they blamed her for it.^[FN4]

In July 2016, after an in camera interview with Sydney, Referee Moriber temporarily returned Sydney to the paternal grandmother's home. On January 27, 2017, Referee Moriber ordered therapeutic visitation between Sydney and her mother, but Sydney refused to participate.^[FN5] Since Sydney has returned to her paternal grandparents' home, she is thriving.

[*3]In a Family Court Act article 6 custody proceeding, the court must make a decision based upon the totality of the circumstances regarding the best interests of the child in furtherance of the child's welfare and happiness. (See Ekstra v Ekstra, 78 AD3d 990, 990 [2d Dept 2010]; Matter of Paul v Sawyer, 78 AD3d 710, 710 [2d Dept 2010]; see also Matter of Palmer-Cardona v Cardona, 63 AD3d 1162, 1162 [2d Dept 2009]; Matter of Nunn v Bagley, 63 AD3d 1068, 1068 [2d Dept 2009]; Matter of Pappas v Kells, 77 AD3d 952, 953 [2d Dept 2010]; Bourne v Bristow, 66 AD3d 621, 621 [2d Dept 2009].) In making a custody determination, the court must consider factors that include: (1) the custodial parent's home atmosphere and parental guidance; (2) each parent's capacity to support the{**56 Misc 3d at 1043} child's emotional and intellectual development; (3) each parent's capability to support the child financially; (4) the proportionality between each parent's fitness; and (5) the effect a grant of custody to one parent might have on the child's relationship with the other parent. (See Ekstra, 78 AD3d at 990-991; see also Paul, 78 AD3d at 710-711; Palmer-Cardona, 63 AD3d at 1162-1163; Nunn, 63 AD3d at 1068-1069; Bourne, 66 AD3d at 621.) Custody determinations are left to the sound discretion of the trial court. (See Matter of Williams v Dowgiallo, 90 AD3d 942, 943 [2d Dept 2011] [citing cases]; see also Matter of Kelly v Hickman, 44 AD3d 941, 941 [2d Dept 2007].)

The paternal grandmother's testimony was honest and heartfelt. In contrast, the mother's testimony was incredible and troubling.^[FN6] The mother seemed more concerned about receiving validation^[FN7] as Sydney's mother than a desire for Sydney's happiness.^[FN8] Absent from the mother's testimony were details of a close, loving relationship with Sydney, whom she repeatedly referred to as "the child," as though Sydney were a possession^[FN9] and not her biological daughter.

Sydney has lived with her grandmother practically uninterrupted from the time that she was about a month old until she was 12 years old,^[FN10] and has a bonded relationship with her. The mother never satisfactorily explained her absence from any{**56 Misc 3d at 1044} portion of Sydney's young life. [*4]When the mother left the paternal grandparents' home without Sydney, it was her stamp of approval of the paternal grandmother as a fit and competent caregiver. Thereafter, during divorce proceedings, the mother formed an agreement with the father that he would have primary residential custody of Sydney. Since then, she has never filed a petition challenging custody or visitation,^[FN11] and never gave an acceptable, plausible reason explaining why. Even when Referee Moriber switched custody to the paternal grandmother and suspended the mother's visitation with Sydney by way of a stay away order of protection, the mother never took action to reverse the order.^[FN12]

The court finds that under the totality of the circumstances, in furtherance of Sydney's welfare and happiness, it is in her best interests to live with the paternal grandmother. Accordingly, in its discretion, after considering the relevant factors, the court awards primary residential and legal custody to the paternal grandmother.

The court hereby vacates the stay away order of protection, dated July 15, 2016, and its progeny, issued against the mother in Sydney's favor. The court recognizes the mother as Sydney's biological mother who, without a stay away order of protection in place, is free to either arrange a mutually agreeable visitation schedule with Sydney through the paternal grandmother, or to come back to court to seek court-ordered visitation with Sydney.