Canabush v. Wancewicz

• Decision Date: 04 November 1993
• Citation: 603 N.Y.S.2d 230,193 A.D.2d 260
• Parties: In the Matter of Joseph CANABUSH, Respondent, v. Evelyn E. WANCEWICZ, Appellant. (And Another Related Proceeding.)
• Court: New York Supreme Court — Appellate Division

Page 230

603 N.Y.S.2d 230

193 A.D.2d 260

In the Matter of Joseph CANABUSH, Respondent, v. Evelyn E. WANCEWICZ, Appellant (And Another Related Proceeding.)

Supreme Court, Appellate Division Third Department.

Nov. 4, 1993.

Hinman, Straub, Pigors & Manning, P.C. (John J. D'Andrea, of counsel), Albany, for appellant.

R. Steven Aceti, P.C. (Margaret C. Tabak, of counsel), Schenectady, for respondent.

Before YESAWICH, J.P., and CREW, WHITE, MAHONEY and CASEY, JJ.

CASEY, Justice.

Appeal from an order of the Family Court of Schenectady County (Reilly Jr., J.), entered June 2, 1992, which granted petitioner's application, in a proceeding pursuant to Family Court Act article 6, for custody of respondent's child.

At issue on this appeal is whether Family Court correctly applied the "best interest" analysis in a child custody dispute between respondent, who is the child's biological mother, and petitioner, who is not the child's biological father. We conclude that despite the parties' stipulation to use the "best interest" analysis in any custody proceeding between them, Family Court could not deprive respondent of the custody of her son in the absence of surrender, abandonment, persisting neglect, unfitness or other extraordinary circumstances. The order which granted petitioner's application must, therefore, be reversed.

After the parties dated for a period of time, respondent became pregnant and her son, Kyle, was born in March 1985. The parties thereafter resided together sporadically for several years until respondent relocated with Kyle in June 1991. During this period, respondent commenced a paternity proceeding against petitioner which resulted in a declaration of paternity and an order of joint custody with petitioner having primary physical custody of Kyle. In June 1988 the declaration of paternity and custody order were vacated on respondent's application, and a subsequent blood test excluded petitioner as Kyle's father. The ensuing custody proceeding resulted in a stipulation, entered into in May 1990, which granted custody of Kyle to respondent and visitation to petitioner. The stipulation also provided that despite his status as a nonparent, petitioner would be held to the same standards and burden of proof as a natural parent in any proceeding pursuant to article 6 of the Family Court Act concerning custody and/or visitation.

Shortly after the stipulation was executed, respondent returned Kyle to petitioner where he remained until June 1991, when respondent took Kyle with her and moved out of the area. Petitioner then commenced this proceeding to modify the custody arrangement embodied in the stipulation, alleging that a modification of custody was warranted by a change in circumstances and that it was in Kyle's best interest to reside with petitioner. After a fact-finding hearing which focused on the parties' conduct subsequent to the execution of the May 1990 stipulation, Family Court concluded that an award of custody to petitioner would be in Kyle's best interest, which was the standard agreed to by the parties in their stipulation. Respondent appeals from the order entered on Family Court's decision.

Parties to a civil dispute are free to fashion the basis upon which the controversy will be resolved and in so doing they can stipulate away statutory and even constitutional rights, unless public policy is affronted (Mitchell v. New York Hosp., 61 N.Y.2d 208, 214, 473 N.Y.S.2d 148, 461 N.E.2d 285). It has long been the law in this State that absent surrender, abandonment, persisting neglect, unfitness or other like extraordinary circumstances, a biological parent has a right to the care and custody of his or her child superior to that of all others (Matter of Male Infant L., 61 N.Y.2d 420, 426, 474 N.Y.S.2d 447, 462 N.E.2d 1165). In the stipulation at issue, respondent effectively agreed to elevate petitioner's status to that of Kyle's biological parent in any custody or visitation proceeding between petitioner and respondent. In so doing, however, respondent did not merely stipulate away some personal right, for Kyle is not her property (see, Matter of Sanjivini K., 47 N.Y.2d 374, 382, 418 N.Y.S.2d 339, 391 N.E.2d 1316). As the Court of Appeals recently explained: "Looking to the child's rights as well as the parents' rights to bring up their own children, the Legislature has found and declared that a child's need to grow up with a 'normal family life in a permanent home' is ordinarily best met in the child's 'natural home' " (Matter of Michael B., 80 N.Y.2d 299, 309, 590 N.Y.S.2d 60, 604 N.E.2d 122, quoting Social Services Law § 384-b[1][a][i], [ii] [emphasis in original]. Thus, the rule favoring a...