Ronald FF v. Cindy GG
| Decision Date | 02 July 1987 |
| Parties | , 511 N.E.2d 75 In the Matter of RONALD FF., Respondent, v. CINDY GG., Appellant. |
| Court | New York Court of Appeals Court of Appeals |
Visitation rights may not be granted on the authority of the Matter of Bennett v. Jeffreys, 40 N.Y.2d 543, 387 N.Y.S.2d 821, 356 N.E.2d 277, extraordinary circumstances rule, to a biological stranger where the child, born out of wedlock, is properly in the custody of his mother. Petitioner was proven by blood test and admissions not to be the father of the child. Respondent is conceded to be a fit mother, a conclusion supported by the evidence before the lower courts, and she has chosen to resist the legal effort to judicially confer visitation rights on petitioner. Under these key premises, the Bennett rule is inapplicable and unavailable. Nothing in this record establishes any basis for interfering with the mother's full custodial rights, which include the right to determine who may or may not associate with her child.
The mother and petitioner began dating in October 1979 while they were in high school. Their relationship continued until the early fall of 1981. In October 1981, the mother and petitioner broke up and she began dating another man whom she planned to marry. That engagement lasted one month and in January of 1982, the mother and petitioner resumed their relationship. After they reunited, the mother-to-be informed petitioner that she was four months pregnant and it was possible that he was the father. Throughout the pregnancy, they resided together. Petitioner participated in the mother's childbirth courses, was present at the child's birth, and agreed, after initial refusal and dispute, to be listed as the father on the child's birth certificate. Over the next year or so, the mother and petitioner lived together sporadically. During periods of estrangement, petitioner continued to see the child regularly and was held out to be and considered himself to be the child's father. After the parties separated, the mother initiated support proceedings against petitioner through the County Department of Social Services.
In October 1983, upon learning of the mother's intent to move to Texas with the child, petitioner started this proceeding seeking an order temporarily restraining the mother from removing her child from the jurisdiction and granting him visitation rights. Family Court granted a temporary restraining order prohibiting the mother from removing the child from the State, and a hearing was directed on the issue of paternity. The results of a blood-grouping test excluded petitioner as the biological father, but the court nevertheless ordered a hearing on the matter of visitation. After a two-day hearing, the Family Court concluded that "in the present circumstances, it is in best interest to continue his relationship with family by means of regular visitation". The court, citing Matter of Bennett v. Jeffreys, 40 N.Y.2d 543, 387 N.Y.S.2d 821, 356 N.E.2d 277, supra, found "the circumstances in the instant case sufficiently extraordinary to warrant consideration of petitioner's request for visitation in light of the child's best interests despite petitioner's lack of paternal ties". Thus, the court ordered bimonthly visits with the child by petitioner and his parents. The court also lifted its previous order restraining the mother from removing the child to another State, but ordered the mother to notify petitioner 30 days in advance of any move from the county so that he could seek modification of the order of visitation.
The mother appealed, and the Appellate Division modified the order of the Family Court eliminating the visitation rights to petitioner's parents and, as so modified, affirmed. With respect to petitioner's parents, the court found that "their status throughout, as nonparties requesting no relief, precludes any determination for or against them" (117 A.D.2d 332, 334, 502 N.Y.S.2d 823).
The mother further appeals to us with respect to the affirmed visitation rights accorded to petitioner. The central issue is whether the...
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