Penders v. Penders

139 A.D.2d 963, 527 N.Y.S.2d 994, 1988 N.Y. App. Div. LEXIS 4109

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 8, 1988
• Status: Published

Opinion

— Order unanimously reversed on the law without costs and petition dismissed. Memorandum: We need not decide whether there is authority for the commencement of this proceeding by the

grandparents against the natural mother for custody of her child. The petition must be dismissed because there was no showing at the hearing of "surrender, abandonment, unfitness, persistent neglect, unfortunate or involuntary extended disruption of custody, or other equivalent but rare extraordinary circumstance which would drastically affect the welfare of the child.” (Matter of Bennett v Jeffreys, 40 NY2d 543, 549.) Here, the Hearing Justice found that the mother was presently capable of caring for the child. He awarded custody to the grandparents because the mother suffered episodes of schizophrenia in the past and he felt that the responsibility of caring for the child might cause a recurrence of her symptoms and render her incapable of providing appropriate care for the child. The medical experts agreed that even if the mother’s symptoms did recur, there would be no physical danger to the child. In the absence of any showing that the mother’s past episodes resulted in any neglect or otherwise drastically affected the welfare of the child, the court had no basis for depriving the mother of custody. (Appeal from order of Supreme Court, Erie County, Sedita, J. — custody.) Present — Doerr, J. P., Boomer, Green, Pine and Balio, JJ.