La Croix v. Deyo

88 A.D.2d 1077, 452 N.Y.S.2d 726, 1982 N.Y. App. Div. LEXIS 17494

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 17, 1982
• Status: Published

Opinions

— Appeal from an order of the Family Court of Ulster County (Elwyn, J.), 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 NY2d 543). 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 AD2d 688). 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 NY2d 543, 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 NY2d 204; Tyrrell v Tyrrell, 67 AD2d 247, affd 47 NY2d 937). We have considered respondent’s remaining arguments and find them unpersuasive. The order should be affirmed. Order affirmed, without costs. Sweeney, J. P., Main, Casey and Weiss, JJ., concur.