Bennett v. Marrow

• Decision Date: 05 December 1977
• Citation: 399 N.Y.S.2d 697,59 A.D.2d 492
• Parties: In the Matter of Joanne BENNETT, Appellant, v. Marie MARROW, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 697

399 N.Y.S.2d 697

59 A.D.2d 492

In the Matter of Joanne BENNETT, Appellant, v. Marie MARROW, Respondent.

Supreme Court, Appellate Division, Second Department.

Dec. 5, 1977.

Westchester Legal Services, Inc. (Andrew L. Levy and John T. Hand, White Plains, of counsel), for appellant.

Jerome J. Goldstein, Mount Vernon, for respondent.

Herbert J. Malach, New Rochelle (Marcia Robinson Lowry, New York City, of counsel), Law Guardian.

Before DAMIANI, J. P., and SHAPIRO, MOLLEN and O'CONNOR, JJ.

O'CONNOR, Justice.

There is here presented one of the most difficult and disturbing problems known to the law the custody of a child. The problem is, of course, compounded when, as here, the conflict rages between the natural mother and a foster mother. The Family Court awarded custody of the child to the foster mother and, after carefully studying this meticulously compiled record, we conclude that the order should be affirmed.

It has long been held that absent grievous cause or necessity requiring displacement or intrusion by the State, the primary right and responsibility for the care and custody of a child rests with the natural parent. Modern thinking, however, recognizes that a child is a person, and not a subperson, with rights of his or her own that attain, in many circumstances, constitutional proportions. (Cf. Goss v. Lopez, 419 U.S. 565, 574, 95 S.Ct. 729, 42 L.Ed.2d 725; Matter of Winship, 397 U.S. 358, 365, 90 S.Ct. 1068, 25 L.Ed.2d 368; Tinker v. Des Moines School Dist., 393 U.S. 503, 506, 89 S.Ct. 733, 21 L.Ed.2d 731; Matter of Gault, 387 U.S. 1, 47, 87 S.Ct. 1428, 18 L.Ed.2d 527.)

That the interests of the child in custody cases are paramount and in no way subservient to the cold legal right of a parent, is nowhere better stated than in a prior appeal in this very case. The court, in Matter of Bennett v. Jeffreys, 40 N.Y.2d 543, 546, 549, 387 N.Y.S.2d 821, 824, 827, 356 N.E.2d 277, 281, 283, although noting that "(t)he parent has a 'right' to rear its child, and the child has a 'right' to be reared by its parent", went on to say that "intervention by the State in the right and responsibility of a natural parent to custody of her or his child is warranted if there is first a judicial finding of surrender, abandonment, unfitness, persistent neglect, unfortunate or involuntary extended disruption of custody, or other equivalent but rare extraordinary circumstance which would drastically affect the welfare of the child. It is only on such a premise that the courts may then proceed to inquire into the best interest of the child and to order a custodial disposition on that ground."

Taking cognizance of the extraordinary circumstances of the case, i. e., "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" (Matter of Bennett v. Jeffreys, supra, p. 550, 387 N.Y.S.2d p. 827, 356 N.E.2d p. 284), the Court of Appeals (1) reversed an order of this court, which awarded custody to the natural mother upon reversing an order of the Family Court, which had awarded custody to the foster mother (51 A.D.2d 544, 378 N.Y.S.2d 420), and (2) remitted the proceeding to the Family Court for a new hearing as to the best interests of the child.

The new hearing extended over a four-week period and contains the testimony of some 26 witnesses; that record and the order entered thereon are now before us for review.

We are here concerned with an unsupervised, private placement and, hence, any analysis of the decision of the Family Court must be predicated not upon statute, but upon common law principles.

Fortunately, the hearing was held before the same Judge who had presided at the first hearing some two years before. Predicated upon his observations and findings at the 1975 hearing, the court was in a rather unique position to completely re-examine and re-evaluate the testimony of those witnesses who had testified at both hearings. In the light of his intimate knowledge of the background and history of the case, he was able to conduct a more in-depth examination of the psychiatrists, psychologists, social workers, teachers and other witnesses called by the parties. Most importantly, the court was enabled to clearly and closely observe for a second time the conduct and deportment of the...