La Croix v. Deyo

• Decision Date: 17 June 1982
• Citation: 452 N.Y.S.2d 726,88 A.D.2d 1077
• Parties: In the Matter of Ariel LA CROIX, Respondent, v. Richard DEYO, as Administrator of the Estate of Debra Campbell Deyo, Deceased, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 726

452 N.Y.S.2d 726

88 A.D.2d 1077

In the Matter of Ariel LA CROIX, Respondent, v. Richard DEYO, as Administrator of the Estate of Debra Campbell Deyo, Deceased, Appellant.

Supreme Court, Appellate Division Third Department.

June 17, 1982.

Paul H. Wein, Guilderland, of counsel to Jane Prizant Gilman, Middletown, for appellant.

Andrea Moran, Kingston, for respondent.

Before SWEENEY, J. P., and MAIN, CASEY, WEISS and LEVINE, JJ.

MEMORANDUM DECISION.

Appeal from an order of the Family Court of Ulster County, entered December 17, 1981, which adjudged petitioner to be the father of a child born August 19, 1973 and awarded custody of that child to petitioner.

Petitioner commenced the present proceeding seeking an adjudication that he is the father of a child born August 19, 1973, and seeking custody of that child. He was never married to the child's mother who married respondent in 1976 and died as a result of an automobile accident in October, 1980 shortly before this proceeding was commenced. In 1976, while in the service stationed in Germany, petitioner married and since 1977 he has resided in Iowa. The Family Court adjudged petitioner to be the father of the child and this part of the order is not disputed on this appeal. It is argued, however, that the court erred in awarding custody of the child to petitioner.

Initially, respondent contends that he commenced an adoption proceeding pursuant to section 111 of the Domestic Relations Law and, therefore, the standards set forth in that statute should have been applied. No mention was made of any adoption proceeding in the court's decision and no papers relating to an adoption proceeding are contained in the record on appeal. Consequently, we conclude that section 111 of the Domestic Relations Law is not applicable herein.

Petitioner, as the natural parent of the child, is entitled to custody of his child absent extraordinary circumstances, and if extraordinary circumstances are presented the court must then inquire into the best interest of the child in order to resolve the issue of custody (Matter of Bennett v. Jeffreys, 40 N.Y.2d 543, 387 N.Y.S.2d 821, 356 N.E.2d 277). In the instant case, the court found no extraordinary circumstances presented and, therefore, awarded custody of the child to petitioner. We agree with this finding and award of custody.

Although the child in question was born in 1973, it was not until January 1, 1977 that petitioner was clearly entitled, by statute, to maintain a paternity proceeding (Family Ct. Act, § 522, as amd. by L.1976, ch. 665, § 6). Nor can petitioner be faulted under the circumstances herein for acquiescing in the mother's custody of the child. The Family Court found that petitioner maintained frequent contact with the child both personally and by letters, telephone calls and gifts. In deciding this issue, the court was confronted with questions of credibility and such questions are usually left to the trier of fact (Matter of Schenectady County Dept. of Social Servs. v. Hilvan RR, 57 A.D.2d 688, 394 N.Y.S.2d 71). We find no reason on this record to disturb the court's decision in this regard. From our review of the entire record, we are of the opinion that extraordinary circumstances as discussed in Matter of Bennett v. Jeffreys, 40 N.Y.2d 543, 387 N.Y.S.2d 821, 356 N.E.2d 277, supra ) are not presented herein and thus conclude that custody of the child was properly awarded to petitioner (see Matter of Dickson v. Lascaris, 53 N.Y.2d 204, 440 N.Y.S.2d 884, 423 N.E.2d 361; Tyrrell v. Tyrrell, 67 A.D.2d 247, 415 N.Y.S.2d 723, affd. 47 N.Y.2d 937, 419 N.Y.S.2d 969, 393 N.E.2d 1041). We have considered respondent's remaining arguments and find them unpersuasive. The order should be affirmed.

Order affirmed, Fam.Ct., 447 N.Y.S.2d 864, without costs.

SWEENEY, J. P., and MAIN, CASEY and WEISS, JJ., concur.

LEVINE, J., dissents and votes to reverse in the following memorandum.

LEVINE, Justice (dissenting).

I respectfully dissent. The unrebutted testimony of respondent's psychological expert, the associate director of Mental Health Services for Ulster County, whose major clinical experience has been the treatment of children and adolescents, was that having recently lost his mother in a sudden, unexpected, fatal accident, the enforced separation from his stepfather and maternal grandmother--the child's only other major sources of nurturance--"would represent a major, major destruction in his life on top of what has been clearly a traumatic experience." The intimacy and importance of this eight-year-old's relationship with his stepfather and maternal grandmother (who participated in his rearing from birth and fully supported the position of the stepfather in this proceeding) can perhaps best be portrayed by two additional excerpts from the expert's testimony, concerning his observations of the interaction between the child and these adults. He testified:

One of the things that happened, as we drove in I followed Mr. Deyo and he got out of his car just as I was coming in the driveway and I saw Paul run to him and get picked up without Paul having seen me. It undercut any cynicism I had if I felt it was put on for my benefit. It seemed like a loving interaction between the two of them.

And referring to the child and the grandmother, the expert stated:

I can almost see children drinking from an adult's body. Its a very--there is a drawing of love that happens and its a specific thing that one can recognize.

This expert testimony, uncontroverted, and unshaken on cross-examination, taken with the additional uncontested evidence that at least for the last four years of the child's life there had not been any meaningful relationship whatsoever between the biologic father and the child, that the sum total of the father's financial support of the child during that period was a single check for $35, that until the commencement of this proceeding no legal relationship between the biologic father and the child had been established, and that the father had never been a part of the child's family unit, established extraordinary circumstances to trigger a best interests determination as a matter of law (Matter of Bennett v. Jeffreys, 40 N.Y.2d 543, 387 N.Y.S.2d 821, 356 N.E.2d 277; see, also, Matter of Gomez v. Lozado, 40 N.Y.2d 839, 387 N.Y.S.2d 834, 356 N.E.2d 287, mot. for rearg. den. 40 N.Y.2d 918, 389 N.Y.S.2d 1027, 357 N.E.2d 1033; Matter of Bannister v. Bannister, 81 A.D.2d 913, 439 N.Y.S.2d 194; Matter of Wade C. v. Rachael D., 78 A.D.2d 937, 433 N.Y.S.2d 229; Guzzo v. Guzzo, 66 A.D.2d 833, 411 N.Y.S.2d 408; Raysor v. Gabbey, 57 A.D.2d 437, 395 N.Y.S.2d 390; People ex rel. Wilson v. Wilson, 56 A.D.2d 794, 392 N.Y.S.2d 639).

Prior to Bennett, the New York courts exalted the possessory rights of biologic parents in contests with nonparents to the point of almost absolute supremacy, subject only to forfeiture upon proof of serious parental misconduct, i.e., abandonment, unfitness, surrender, or persistent neglect (see People ex rel. Scarpetta v. Spence-Chapin Adoption Serv., 28 N.Y.2d 185, 321 N.Y.S.2d 65, 269 N.E.2d 787, cert. den. 404 U.S. 805, 92 S.Ct. 54, 30 L.Ed.2d 38; People ex rel. Anonymous v. Anonymous, 10 N.Y.2d 332, 222 N.Y.S.2d 945, 179 N.E.2d 200; People ex rel. Kropp v. Shepsky, 305 N.Y. 465, 113 N.E.2d 801; People ex rel. Portnoy v. Strasser, 303 N.Y. 539, 104 N.E.2d 895). Bennett, however, for the first time recognized that the absence of a functional parent-child relationship, arising out of long-standing separation--even if brought about without parental fault, afforded the courts a basis for objectively determining whether turning the child over to the biologic parent would be detrimental to its best interests. There is no other way fairly to read Bennett's inclusion within "extraordinary circumstances" of not only the traditional instances of misconduct, but also "unfortunate or involuntary disruption of custody over an extended period of time" (Matter of Bennett v. Jeffreys, supra, p. 546, 387 N.Y.S.2d 821, 356 N.E.2d 277). In Bennett, the court held that the "prolonged separation from the child for most of its life" (id. at 544, 387 N.Y.S.2d 821, 356 N.E.2d 277, emphasis added) was in and of itself sufficient to trigger a best interests determination. Indeed, the uncontested facts in the instant case pose far more compelling "extraordinary circumstances" than the following illustration given in Bennett :

Moreover, the child may be so long in the custody of the nonparent that, even though there has been no abandonment or persisting neglect by the parent, the psychological trauma of removal is grave enough to threaten destruction of the child (id. at 550, 387 N.Y.S.2d 821, 356 N.E.2d 277).

The Family Court's determination that no extraordinary circumstances existed under the uncontested facts is demonstrably based upon an erroneous application of the case law and upon factual determinations unsupported by the evidence. The court principally relied upon Matter of Dickson v. Lascaris, 53 N.Y.2d 204, 440 N.Y.S.2d 884, 423 N.E.2d 361,) in making its determination on this issue, interpreting Dickson as a retreat from Bennett. However, Dickson is totally distinguishable from the instant case, involving a disruption of regular parent-child contact for little more than a year and whether that disruption constituted an abandonment. ¹ Having found that no such abandonment took place here, the Family Court made short work of "unfortunate or involuntary" separation as an alternative extraordinary circumstance, concluding that because New York did not permit a putative father to file a paternity petition until January 1, 1977 (L.1976, ch. 665), the natural father cannot be faulted for the unfortunate or involuntary disruption of custody. The apparent, self-contradictory reasoning of the court is that because the law prevented the father's voluntary exercise of parental rights, there cannot be any...