In re Justina S. , 180 A.D.2d 641 ( 1992 )

In a proceeding for the appointment of Brian S. as coguardian of the child Justina S., the petitioners appeal (1) from an order of the Family Court, Kings County (Nason, J.), dated March 20, 1989, which, after a hearing, denied their application, and (2), as limited by their brief and oral argument, from so much of an order of the same court, dated August 9, 1989, as denied that branch of their motion which was for renewal of the coguardianship application.

Ordered that the order dated August 9, 1989, is reversed insofar as appealed from, on the law and as a matter of discretion, that branch of the motion which was for renewal is granted, upon renewal the order dated March 20, 1989, is vacated, the coguardianship petition is granted, and the matter is remitted to the Family Court, Kings County, for entry of an order appointing Brian S. coguardian of the subject child; and it is further,

Ordered that the appeal from the order dated March 20, 1989, is dismissed as academic, in light of our determination on the appeal from the order dated August 9, 1989; and it is further,

Ordered that the appellants are awarded one bill of costs, payable by the respondent Keith P.; and it is further,

Ordered that pending the entry of the order adjudicating Brian S. coguardian of the subject child, as well as the entry of a dispositional order in the companion child protective proceeding, custody of the child is continued with the mother pursuant to a stipulation dated May 4, 1989.

The subject child, Justina S., was born on September 26, 1985. The respondent Keith P. was subsequently adjudicated her natural father, and commenced two proceedings for visitation, as well as a custody proceeding which has since been settled by stipulation. The mother, Alina S., joined by her then live-in boyfriend, Brian S., commenced, inter alia, a guardianship proceeding to have Brian S. declared coguardian of Justina S.

Following dismissal of their coguardianship proceeding, Brian S. and Alina S. were married on April 15, 1989, and thereafter moved for renewal, on the ground, inter alia, of their recent marriage. The court denied their renewed motion without explanation.

The evidence adduced at the hearing in the coguardianship proceeding—including proof that Brian S. alone had supported Justina S. since her birth, and had behaved as a father to her —established that Brian S. should be appointed coguardian of the child. Where the best interests of the child would be served by the appointment of a non-relative to act as coguardian with a parent or relative, "because such person is better qualified to handle the infant’s affairs” than the other parent, a court may do so (26 Carmody-Wait 2d, NY Prac § 155:20, at 684; SCPA 1701, 1707 [1]). Accordingly, the petition in the coguardianship proceeding is granted (see also, Matter of Justina S., 180 AD2d 642 [decided herewith]).

We note that custody of the child is no longer in issue as it was granted to the mother, Alina S., pursuant to a stipulation dated May 4, 1989. Rosenblatt, J. P., Fiber, O’Brien and Ritter, JJ., concur.