
    In the Matter of Clarence Dickson, Appellant, v John Lascaris, as Commissioner of the Onondaga County Department of Social Services, et al., Respondents.
    Argued April 29, 1981;
    decided June 16, 1981
    
      POINTS OF COUNSEL
    
      Maurie Heins for appellant.
    I. The doctrine of extraordinary circumstances cannot be applied to this case in the manner envisioned by Matter of Bennett v Jeffreys (40 NY2d 543) because of the involvement of the Department of Social Services in the placement of appellant’s children. (Matter of Spence-Chapin Adoption Serv. v Polk, 29 NY2d 196; Smith v Organization of Foster Families, 431 US 816); People ex rel. Ninesling v Nassau County Dept, of Social Servs., 46 NY2d 382; Matter of Sanjivini K., 47 NY2d 374; Matter of Bennett v Jeffreys, 40 NY2d 543.) II. Assuming that the Bennett test of extraordinary circumstances can be applied to this case, the result, as a matter of law, must be that there are no extraordinary circumstances in this case. (Matter of Tyrrell v Tyrrell, 67 AD2d 247, 47 NY2d 937; People ex rel. Gallinger v Gallinger, 55 AD2d 1036; People ex rel. Wilson v Wilson, 56 AD2d 794; Raysor v Gabbey, 57 AD2d 437.) III. The trial court erred in considering the racial composition of appellant’s family in determining the best interests of appellant’s children. (People ex rel. Portnoy v Strasser, 303 NY 539; Raysor v Gabbey, 57 AD2d 437.) IV. Both the trial court and the court below failed to weigh the best interests of the children in the manner mandated by this court in Matter of Bennett v Jeffreys. (Matter of Bennett v Jeffreys, 40 NY2d 543.) V. The court’s failure to weigh evidence which impeached appellee’s credibility was erroneous.
    
      Richard C. Kram for Ruby Kelly, respondent.
    I. The doctrine of extraordinary circumstances was appropriately applied to this case. (Matter of Wesley L., 72 AD2d 137; Matter of Tyrrell v Tyrrell, 67 AD2d 247, 47 NY2d 937; Smith v Organization of Foster Families, 431 US 816; Matter of Sanjivini K., 47 NY2d 374; Guzzo v Guzzo, 66 AD2d 833; Raysor v Gabbey, 57 AD2d 437; People ex rel. Gallinger v Gallinger, 55 AD2d 1036; Matter of Benning [Nigro], 303 NY 775.) II. The courts below correctly determined that the best interests of the Dickson children would be served by continuing custody with respondent Kelly. (Matter of Lamond B., 64 AD2d 625; Matter of Ray A. M., 37 NY2d 619; Matter of Orlando F., 40 NY2d 103.) III. There is substantial evidence in the record to support the determination of the trial court and the court below which, in a matter such as this, are entitled to great weight. (Matter of Ray A. M., 37 NY2d 619; Bunim v Bunim, 298 NY 391; Matter of Corey L v Martin L, 45 NY2d 383.)
   OPINION OF THE COURT

Chief Judge Cooke.

This appeal addresses the denial of appellant’s petition to regain custody of his children, not from his spouse or a former spouse, but from a third party. Family Court, concluding there were “extraordinary circumstances” present, applied the best interests of the children standard and denied the petition for custody. A sharply divided Appellate Division affirmed. We now reverse.

Petitioner is the father of three children born in 1971, 1972 and 1974. During the summer of 1974, after his wife refused to share responsibility for the children or the household, petitioner undertook to care for the children himself. A series of temporary arrangements proved unsuccessful, and petitioner then entrusted the children to respondent Kelly, who was a friend of his father.

Family Court found that petitioner visited the children in the fall of 1974 and made four payments of support pursuant to a support order. Support payments were discontinued and, during 1975 petitioner had only one or two contacts with his children. At one point, the court found, petitioner refused to consent to an operation for one of his children.

Apparently, petitioner re-established regular contact with the offspring sometime in 1976. Beginning in 1977, petitioner made efforts to obtain their custody and, following his divorce and remarriage in the fall of that year, commenced this custody proceeding. At the time of commencement, petitioner was in regular contact with his children.

In denying the petition, Family Court first noted that under Matter of Bennett v Jeffreys (40 NY2d 543) an abandonment was an “extraordinary circumstance” which would trigger the best interests of the children test. The court then went on to conclude that, in custody matters, an abandonment may be established by a lesser showing than the concept traditionally requires. Thus, the court held that a “passive” abandonment — i.e., conduct on the part of the parent not rising to the level of a statutory or common-law abandonment, constitutes an “extraordinary circumstance” within the meaning of Bennett.

On appeal, the Appellate Division refused to adopt the “passive” abandonment concept, but found extraordinary circumstances in the length of custodial interruption, coupled with other “extenuating circumstances”. Two Justices dissented, reasoning that the court was unjustifiably diluting the rule of Bennett.

Historically, it has been the law in this State that, as between a parent and a third person, parental custody of a child may not be displaced absent grievous cause or necessity (e.g., Matter of Bennett v Jeffreys, 40 NY2d 543, 548, supra; People ex rel. Anonymous v Anonymous, 10 NY2d 332, 335; People ex rel. Kropp v Shepsky, 305 NY 465, 468-469). Although earlier characterized as involving the “primacy of parental rights” (People ex rel. Kropp v Shepsky, supra, at p 469; People ex rel. Portnoy v Strasser, 303 NY 539), the rule in actuality is founded upon the “generally accepted view that a child’s best interest [is to be] raised by its parent unless the parent is disqualified by gross misconduct” (Matter of Spence-Chapin Adoption Serv. v Polk, 29 NY2d 196, 204). Rather than artificially exalting the “rights” of the parent at the expense of the well-being of the child, this rule fosters both interests by recognizing that they ordinarily converge.

Only recently, we had occasion to review and characterize the narrow situations in which a court is warranted in considering whether the best interests of the child dictate displacement of parental custody. Absent “surrender, abandonment, persisting neglect, unfitness or other like extraordinary circumstances” the court declared, the “State may not deprive a parent of the custody of a child” (Matter of Bennett v Jeffreys, 40 NY2d 543, 544, supra). Even when such “extraordinary circumstances” are present, however, the court must first inquire into the best interests of the child before making a custody determination (id., at p 548). -In certain circumstances, those interests may best be served by reposing custody in the parent.

Nowhere does the opinion in Bennett undertake to define the concept of abandonment. At the same time, Bennett does not suggest that the traditional concept of abandonment was being discarded. Indeed, the court expressly noted that abandonment was not involved (40 NY2d, at p 545, supra). Reliance upon Bennett for the proposition that something less than an actual abandonment constitutes an extraordinary circumstance is thus misplaced.

Examination of prior decisions likewise reveals no basis for relaxing the definition of abandonment when evaluating whether extraordinary circumstances exist. To the contrary, the cases have applied the prevailing standard for abandonment (see, e.g., People ex rel. Anonymous v Anonymous, 10 NY2d 332, 337, supra) before supplanting parental custody. Nor would it be wise or desirable to create an open-ended, amorphous concept to replace the now well-developed law of abandonment. Such replacement would signify that we would have arrived at a tragic pass in social history — when parental rights could be overlooked and lost so easily.

Thus, it was error for the court to have concluded, in the absence of an abandonment as defined by statute, that petitioner abandoned his child (see, also, Matter of Bennett v Jeffreys, 40 NY2d 543, 544, supra). The definition of abandonment for determining whether an extraordinary circumstance is present within the meaning of Bennett v Jeffreys (supra) simply does not differ from the classic abandonment principle, as modified by modern developments (see Matter of Corey L v Martin L, 45 NY2d 383, 388-392).

Finally, there is no basis on this record for finding such a prolonged interruption of custody as to constitute an extraordinary circumstance. As this court recently noted, where a period of separation is attributable to the parent’s efforts to regain custody lawfully, that separation is entitled to little, if any, consideration (Matter of Sanjivini K., 47 NY2d 374, 381-382). Although Sanjivini involved termination of parental rights, rather than custody, the. court also stated that “it is doubtful whether it could be found to be in the child’s best interests to deny her [parent’s] persistent demands for custody simply because it took so long * * * to obtain it legally” (47 NY2d, at p 382). Since a large portion of the separation here occurred during the father’s informal and formal attempts to obtain custody, the custodial disruption does not rise to the level of an extraordinary circumstance. Quite bluntly, a child is not a piece of property over whom title may be acquired by adverse possession.

Accordingly, the order of the Appellate Division should be reversed, and the matter remitted to Family Court, Onondaga County, with directions to grant the petition.

Fuchsberg, J.

(dissenting). My concurring opinion in Matter of Sanjivini K. (47 NY2d 374, 383) concluded with the observation that “[o]nce the foster relationship has, willy-nilly, shifted from a ‘temporary’ to a ‘permanent’ one, best interest factors in another case could contraindicate disruption of that relationship and instead dictate an opposite result [citations omitted]”. As I view its facts and circumstances, what we have here is such a case. Thus, unless the natural parent-child relationship must dominate at all odds, a position to which neither good law nor good pediatric psychiatry need subscribe, I believe the determinations reached at the Family Court and at Appellate Division should be upheld (see, also, Matter of Bennett v Jeffreys, 40 NY2d 543, 549).

Meyer, J.

(dissenting). I would affirm. Abandonment of the character upon which the majority insists in this custody proceeding is clearly appropriate when the issue is whether a parent’s constitutional right to raise his or her child or children should be terminated. Matter of Bennett v Jeffreys (40 NY2d 543) was, however, an effort to enunciate a more fluid concept relating to custody as distinct from termination proceedings. Phrased as “extraordinary circumstances” the test is not so stringent as abandonment, though abandonment can constitute an extraordinary circumstance. A finding of extraordinary circumstances by itself, however, is not sufficient; that finding is but a predicate for balancing factors relative to each contestant in order to determine where lies the best interests of the child or children whose custody is in issue.

Thus, while it is true that Bennett was not an abandonment case, that fact is irrelevant. Bennett applied the best interests test to determine custody as between a parent and foster parent, because the court found “extraordinary circumstances” in “the protracted separation of mother from child, combined with the mother’s lack of an established household of her own, her unwed state, and the attachment of the child * * * to the custodian” (at p 550). To make the determination of this custody proceeding turn on whether there was “an abandonment as defined by statute” (at p 209), rather than whether the findings made by the Family Court Judge and affirmed by the Appellate Division are sufficient to trigger the best interests test is, simply put, to apply the wrong rule of law.

In my view, the affirmed findings establish extraordinary circumstances. Petitioner did not just refuse to consent to an operation for one of his children (at p 207). Told in July, 1975 of his child Janice’s brain tumor and asked to sign a consent form because the hospital insisted upon it, he not only refused but told respondent (the foster parent) “If she going to die ain’t nothing we can do about it, let her die”, made no effort to help with the other children though asked to do so by respondent who was visiting the hospital daily, and saw the ill child once in the hospital and once when she came home, and then disappeared from the lives of respondent and his children for over a year. If that does not by itself constitute “callous disregard” and “complete indifference” (People ex rel. Anonymous v Anonymous, 10 NY2d 332, 336), the failure to visit with the children on any meaningful basis from the time they were turned over to respondent in the fall of 1974 until respondent sought petitioner out in July, 1975 in the effort to get his consent concerning Janice, or to provide support for them, financial or psychological, at any time, adds enough to come within Bennett’s “extraordinary circumstances" rubric.

Not only are extraordinary circumstances established by this record, but also the affirmed findings establish that custody in respondent is in the best interests of the children. As I had occasion to write in Matter of Norman (26 Misc 2d 700, 704): “Second only to love in the parent-child relationship is stability.” Petitioner has given his children neither; respondent has given them both. Petitioner’s parental rights have not been “lost so easily” as the majority (at p 209) suggests; rather he has consciously disregarded them. It may well be that he can establish a new relationship with the children, for even if custody remained, as I think it should, with respondent, he would be entitled to visitation, and, of course, unless his parental rights are hereafter terminated according to statute, he can bring another custody proceeding whenever he has established a relationship with them that warrants his doing so.

Judges Jasen, Gabrielli, Jones and Wachtler concur with Chief Judge Cooke; Judges Fuchsberg and Meyer dissent and vote to affirm in separate dissenting opinions.

Order reversed, without costs, and the matter remitted to Family Court, Onondaga County, with directions to grant the petition. 
      
      . The trial court, as it was entitled to do, discredited petitioner’s testimony that 'he visited frequently and instead adopted respondent Kelly’s testimony . that contact was infrequent.
     
      
      . Given our disposition of the matter, we find it unnecessary to explore further the possible meanings of the term “passive” abandonment. It would seem, however, that the concept is open-ended enough to apply whenever a parent acquiesces in another having custody of the children, no matter how frequent or substantial the contact between parent and child.
     
      
      . Involved here is a private, unsupervised placement and thus common-law principles are applicable (Matter of Bennett v Jeffreys 40 NY2d 543, 545, supra). It is not contended on this appeal that agency involvement in this case, of which there was some, brought statutory law into play.
     
      
      . We have no occasion to reach the issue of the best interests of the children, but note that it is by no means certain that such inquiry should lead to disruption of parental custody in these circumstances.
     
      
       After petitioner’s refusal the hospital, because of the urgency of Janice’s situation, accepted a consent signed by respondent acting under power of attorney given respondent the previous year by petitioner.
     