Pernice v. Cote

— Weiss, J.

Appeal from an order of the Family Court of Delaware County (Estes, J.), entered October 31, 1984, which granted petitioner’s application for custody of Allison Michelle Cote.

Allison Michelle Cote was born in August of 1977 to respondent and Judith Cote Pernice (hereinafter decedent), who resided in Bridgeport, Connecticut, with decedent’s two children from a previous marriage. In August of 1980, decedent and the children moved to the Town of Delhi, Delaware County, near a parcel of land she and respondent owned. It was understood that respondent would continue to reside in Bridgeport for employment purposes and commute weekly or monthly until his anticipated retirement two years away. Shortly after the relocation, respondent and decedent separated and subsequently divorced in 1981. Decedent remained in Delhi and retained custody of Allison and her other two children, and respondent, residing in Connecticut, obtained extensive visitation rights. In 1982, decedent married petitioner. However, decedent had been suffering from cancer for several years and passed away in November of 1983. Petitioner surrendered decedent’s two children from her first marriage to their natural father, but commenced a proceeding to obtain custody of Allison. Respondent also petitioned for custody of Allison and the proceedings were consolidated for trial by agreement of counsel. After finding that extraordinary circumstances existed which necessitated an examination of Allison’s best interests, Family Court granted custody of Allison to petitioner. This appeal by respondent ensued.

We reverse. In our view, Family Court lacked an adequate basis for finding that extraordinary circumstances existed warranting further inquiry into the best interests of the child for purposes of determining who should have custody (see, Matter of Bennett v Jeffreys, 40 NY2d 543). We recognize that by his own testimony, respondent failed to maintain contact with his daughter for at least 14 months prior to decedent’s death, and that his excuse may have appeared less than justifiable. While respondent maintains that decedent resisted his visitation efforts during this period, there is no indication that he ever attempted to protect his interests by resort to judicial proceedings (see, Matter of Male Infant L., 61 NY2d 420), a failure that is difficult to fathom. Nonetheless, the fact remains that respondent is the natural parent of Allison, and other than his noted 14-month lapse, has maintained a continuing relationship with her.

Although not subject to specific definition, the "extraordinary circumstances” necessary to separate a child from his or her natural parent must be "compelling” (Matter of Bennett v Jeffreys, supra, p 552). While respondent voluntarily surrendered custody to decedent in 1980, that arrangement certainly does not constitute an extraordinary circumstance (see, Matter of Tyrrell v Tyrrell, 67 AD2d 247, 249-250, affd 47 NY2d 937). Indeed, upon stipulating to custody with decedent in settlement of their divorce action, respondent reserved significant visitation rights. It is important to recognize that respondent acquiesced in decedent’s custody, not petitioner’s. Nor should we gloss over the fact that it was decedent who advised respondent, shortly after moving to Delhi that their marriage was terminated and that she would transport Allison back to Bridgeport for visitation purposes, an agreement she abruptly rescinded. Moreover, respondent faithfully continued his child support throughout this period.

Family Court determined that both parties are in a position to properly attend to the child’s material needs. And while it is apparent that the child has an emotional bond with petitioner, and has thrived in his care, it is equally apparent that respondent has demonstrated a sincere desire to raise his child. In our view, the 14-month separation, while unfortunate in view of the tragic circumstances attendant to decedent’s illness, was not so compelling as to deprive respondent of his fundamental parental rights (see, Matter of Male Infant L., 61 NY2d 420, 426-427, supra; cf. Matter of Abendschein v Gatti, 105 AD2d 1101 [prolonged separation, lack of established household and alcohol abuse]; Matter of Jonathan D., 62 AD2d 947, lv denied 45 NY2d 706 [6 612-year placement with foster parents]; People ex rel. Gallinger v Gallinger, 55 AD2d 1036 [three years without contact]). This is particularly the case since Allison is fully aware that respondent is her natural father. It follows that the question of the child’s best interests does not arise and respondent is entitled to an award of custody. Accordingly, the order of Family Court should be reversed and custody of Allison awarded to respondent.

Order reversed, on the law and the facts, without costs, and custody of Allison Michelle Cote awarded to respondent. Kane, J. P., Weiss, Yesawich, Jr., and Harvey, JJ., concur.