Eggleston v. Neal

81 A.D.2d 962

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 14, 1981
• Status: Published

Opinion

— Appeal from an order of the Family Court of Chenango County, entered November 25, 1980, which awarded custody of respondent’s daughter to petitioner. Petitioner, the maternal grandfather of respondent’s eight-year-old daughter, neither alleged nor proved any extraordinary circumstances warranting a change in custody from her father. The petition merely asserted in a conclusory fashion that it would be in the best interest of the child to remove her from her parent “In view of the tragic and unsettled conditions present in the child’s home.” It was disclosed at the hearing that a two-year-old girl had died at the dwelling respondent shared with his present wife while both were present. Although unspecified criminal charges were lodged against the wife as a result of this incident, there was no indication that any form of culpability should attach to respondent’s behavior. Similarly, while living conditions at the residence may have been less than ideal, there was no evidence that respondent neglected the care of his daughter. Petitioner’s concern and good intentions are evident, but he failed to develop any factual predicate adequate to support interference with the existing custodial arrangement. Accordingly, the order appealed from should be reversed and the petition dismissed (cf. Matter of Bennett v Jeffreys, 40 NY2d 543, 548; Matter of Tyrrel v Tyrrel, 67 AD2d 247, affd 47 NY2d 937). Order reversed, on the law and the facts, and petition dismissed, without costs. Mahoney, P.J., Sweeney, Kane, Casey and Weiss, JJ., concur.