Milli v. Morreale

83 A.D.2d 173, 443 N.Y.S.2d 960, 1981 N.Y. App. Div. LEXIS 14770

Opinions

OPINION OF THE COURT

Per Curiam.

It is a fundamental rule that “[t]he parent has a ‘right’ to rear its child, and the child has a ‘right’ to be reared by its parent” (Matter of Bennett v Jeffreys, 40 NY2d 543, 546, quoted in Matter of Tyrrell v Tyrrell, 67 AD2d 247, 248, affd 47 NY2d 937). It is also settled that “[b]efore custody may be awarded to a nonparent based on the best interest of the child against the wishes of a parent, the court must make the threshold determination that extraordinary circumstances exist. The best interest of the child, as such, is not involved in this threshold question. Thus, courts have ‘not hesitated to hold that a parent cannot be displaced because “someone else could do a ‘better job’ of raising the child” ’ (Matter of Corey L. v Martin L. [45 NY2d 383, 391])” (Matter of Tyrrell v Tyrrell, 67 AD2d, at p 248). Whether extraordinary circumstances exist is a question of fact (see Matter of Bennett v Jeffreys, supra, p 549). We see no basis in the record for disturbing the detailed findings and the conclusion of the Surrogate on this issue. Moreover, the evidence supports the court’s finding that to return the child to the father would be in the child’s best interests and that “[n]o valid reason exists for continuing the physical separation that now exists between [the child] and her father.” The order should, therefore, be affirmed.