Merritt v. Way

85 A.D.2d 666, 445 N.Y.S.2d 205, 1981 N.Y. App. Div. LEXIS 16490

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 21, 1981
• Status: Published

Opinions

— In a custody proceeding pursuant to article 6 of the Family Court Act, petitioner appeals from an order of the Family Court, Queens County (Corrado, J.), dated June 25, 1981, which denied her petition and awarded the custody of the subject child to the respondent natural father. Order affirmed, without costs or disbursements. The Family Court found that respondent and his wife, the subject child’s mother, were married on July 1, 1959. Two sons were born of the marriage, the younger being the subject child, bom on July 12, 1967. On June 19, 1974, respondent and his wife were divorced in Connecticut; custody of the two children was split, the older to respondent, and the younger to his wife. Respondent was also ordered to pay $250 per month in child support. Visitation between siblings and between each child and the noncustodial parent was ordered pursuant to a separation agreement incorporated into the judgment of divorce. As to 1974, it was agreed that respondent’s summer visitation with the subject child would be in accordance with the recommendations of the child’s therapists as to the nature, duration and locality of the visitation. After the divorce, respondent and his older son moved to Las Vegas, Nevada. Thereafter, problems developed between respondent and his former wife concerning the terms and conditions of the divorce judgment and the separation agreement. In 1974, the subject child’s psychologist recommended that respondent be denied summer visitation, which he was. Respondent, therefore, temporarily removed the child from Connecticut and took him to Nevada. In 1975, respondent was again denied summer visitation, but then for the unfounded reason that he was in arrears in child support. In October, 1976, he again removed the subject child from'Connecticut. The child was returned, however, the following month, as a result of judicial proceedings in Nevada. Thereafter, respondent did not see the subject child until the summer of 1980. He also ceased making child support payments to his former wife, who, in turn, instituted enforcement proceedings, which were ultimately dismissed. No support was paid after June or July, 1975. In March, 1980, respondent’s former wife died of cancer, and petitioner, her sister, and petitioner’s husband, took the subject child into their home. At the request of the subject child’s mother, neither respondent nor his older son was informed of her death. Only in July, 1980, did they accidentally learn of it in attempting to telephone the subject child on his birthday. Respondent then arranged with petitioner’s husband to have his younger son visit him in Nevada. This, however, never took place, because the petitioner and her husband refused to allow the visit and petitioner instituted this proceeding for the child’s custody, in which respondent has cross-petitioned for the same relief. The Family Court also found that the subject child’s mother had selected her sister to act as the child’s guardian after her death. Furthermore, she provided in her will that, if respondent were to become the child’s guardian, the child should have no access to his inheritance until age 24. The Family Court credited respondent’s testimony that he had sent letters and gifts to hs son, which the child had never received. It found that respondent had ceased paying child support after being denied visitation for two consecutive years, and that, on the two occasions when he had removed his younger son from Connecticut to Nevada, he had only done so out of frustration over being prevented from enjoying any meaningful relationship with him. The Family Court concluded that respondent had not been shown to have forfeited his right to the custody of his son, there having been insufficient proof of surrender, abandonment, unfitness, persistent neglect or other extraordinary circumstances. We agree. In a custody dispute between a nonparent and a natural parent, if the former would defeat the latter’s prima facie right to custody on the sole ground of the child’s best interests, he must first show the existence of “extraordinary circumstances”. (Matter of Bennett v Jeffreys, 40 NY2d 543.) Under the rubric of “extraordinary circumstances”, there is no evidence on this record of respondent’s unfitness or persisting neglect. It is suggested, however, that there is evidence oran abandonment or a surrender. Alternatively, it is suggested that there may have been the extraordinary circumstance of a voluntary separation of protracted length in combination with certain other factors, such as strong negative feelings of the child toward the natural parent, attachment to the nonparent, and limitations of the former fully to parent his child, not, in themselves, constituting unfitness. We reject these suggestions. A parent who, by reason of separation or divorce, no longer maintains the custody of his child, said custody being solely in the other parent, cannot, without more, be found to have abandoned or surrendered that child. (Matter of Dickson v Lascaris, 53 NY2d 204, 209; Matter of Tyrrell v Tyrrell, 67 AD2d 247, 249-250, affd 47 NY2d 937 on opn at App Div.) Moreover, where, as here, a noncustodial divorced parent’s contact with his child has been, at least in part, interrupted by the custodial parent’s denial of visitation, a resulting period of separation between noncustodian and child of a length, such as here, is not, without more, an “extraordinary circumstance” within the meaning of Matter of Bennett v Jeffreys (supra). (See Matter of Tyrrell v Tyrrell, supra; cf. Guzzo v Guzzo, 66 AD2d 833 [where, in addition to the parent-child separation, there was proof, inter alia, of physical abuse]; Matter of Hendricks v Osborne, 64 AD2d 629 [where, in addition to parent-child separation, there was proof of unfitness]; People ex rel. Wilson v Wilson, 56 AD2d 794 [where, in addition to parent-child separation, there was proof, inter alia, of drinking and emotional problems].) Loss of contact between noncustodial parent and child is especially not an “extraordinary circumstance”, where, as here, the former has made attempts, though unsuccessful, to communicate with his child. (Cf. People ex rel. Gallinger v Gallinger, 55 AD2d 1036.) It should also be observed that, although the subject child expressed a preference to remain with petitioner and her husband, the Family Court found that there was no evidence of negative feelings towards respondent, nor of any strong attachment to petitioner and her husband, with whom he had resided for only six months before the commencement of this proceeding. (Cf. Guzzo v Guzzo, supra.) As to the child’s preference, we agree with the Family Court that, in itself, such a preference should not be controlling. (See Romi v Hamdan, 70 AD2d 934.) Accordingly, the order appealed from should be affirmed. Mangano, J. P., Thompson and Bracken, JJ., concur.