Bannister v. Bannister

• Decision Date: 26 May 1981
• Citation: 81 A.D.2d 913,439 N.Y.S.2d 194
• Parties: In the Matter of Barbara L. BANNISTER, Respondent, v. Catherine BANNISTER, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 194

439 N.Y.S.2d 194

81 A.D.2d 913

In the Matter of Barbara L. BANNISTER, Respondent, v. Catherine BANNISTER, Appellant.

Supreme Court, Appellate Division Second Department.

May 26, 1981.

S. F. Andewelt, Brooklyn, for appellant.

Neumann & Fleissig, Brooklyn (Aaron Fleissig, Brooklyn, of counsel), for respondent.

Before LAZER, J. P., and MARGETT, O'CONNOR and THOMPSON, JJ.

MEMORANDUM BY THE COURT.

In a custody proceeding, the appeal is from an order of the Family Court, Kings County, dated June 13, 1980, which, after a hearing, awarded custody of the child in question to petitioner, with visitation rights for appellant.

Order reversed, without costs or disbursements, and proceeding remitted to the Family Court for a new hearing and determination in accordance herewith. Pending the new determination, custody of the child shall remain with petitioner, with visitation to appellant in accordance with the order under review.

Petitioner is the natural mother of Tracey, born May 9, 1972. Petitioner was 17 years old at the time of Tracey's birth and was living with the appellant, her maternal aunt. Approximately one year after the birth of the child, petitioner moved out of her aunt's home and left Tracey there. In November, 1979 petitioner commenced this proceeding to regain custody of her daughter. The testimony at the hearing was diametrically opposed. The mother testified that she visited the child every Saturday and contributed to the child's support in the amount of $25 weekly. Appellant and petitioner's sister, Dorothea, who lives with appellant, both testified that petitioner only visited the child approximately seven times since she left their home, and rarely contributed money for the child. A social worker, who interviewed the child, testified that the child has become attached to appellant, and even more so to Dorothea, who was the mother figure for the child. In the social worker's opinion, there would be a harmful effect on the child if she were removed from her great-aunt's home.

The Family Court "creditthe testimony of and took into consideration its interview with the child, and awarded custody of the child to its mother. Appellant was granted visitation rights on alternate weekends. The court held that in the absence of extraordinary circumstances as referred to in Matter of Bennett v. Jeffreys, 40 N.Y.2d 543, 387 N.Y.S.2d 821, 356 N.E.2d 277, it could not deprive the natural parent of the custody of her child.

"The State may not deprive a parent of the custody of a child absent surrender, abandonment, persisting neglect, unfitness or other like extraordinary circumstances. If any of such extraordinary circumstances are present, the disposition of custody is influenced or controlled by what is in the best interest of the child" (see Matter of Bennett v. Jeffreys, supra, p. 544, 387 N.Y.S.2d 821, 356 N.E.2d 277).

In Matter of Bennett v. Jeffreys (supra ), the protracted separation of mother from child, combined with the mother's lack of an established household of her own, her unwed state, and the attachment of the child to the custodian, constituted the extraordinary circumstances which triggered the best interest test. In the present case, as in Bennett, there is an "unfortunate or involuntary disruption of custody over an extended period of time" (see Matter of Bennett v. Jeffreys, supra, p. 546, 387 N.Y.S.2d 821, 356 N.E.2d 277). "mother who has permitted her child to remain with for a extended period might be denied the right to regain custody, without regard to fault, if disruption...