Dickson v. Lascaris

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.^[1] 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.^[2]

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).^[3] 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

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).^[4]

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

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,^[1] 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