Summary
In Benitez, there was no termination of the parental right to custody and no finding of parental unfitness or abandonment; nevertheless, the court, acting in the best interest of the child, ruled that the child should remain in the custody of a second cousin.
Summary of this case from Matter of Bennett v. JeffreysOpinion
Argued March 24, 1976
Decided April 27, 1976
Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, CESAR H. QUINONES, J.
Melvin E. Rosenthal for appellant.
Susan B. Lindenauer and Morton B. Dicker for respondents.
MEMORANDUM. The order of the Appellate Division should be affirmed, without costs.
Due to the concurrence of circumstances described in the opinion at the Family Court and the delays, for whatever reasons, in prosecuting this custody proceeding, the infant is within months of attaining his legal maturity, and, therefore, the legal right to choose where and with whom he will live. It would be bootless and cruel to change his custody at this time. Under the circumstances the principles applicable to children of more tender years may not be blindly applied (cf. Matter of Spence-Chapin Adoption Serv. v Polk, 29 N.Y.2d 196; People ex rel. Kropp v Shepsky, 305 N.Y. 465). The effects of the extended separation of the mother from her child these many years and his consequent attachment to his relatives who had served as foster parents are irreversible, however differently one would have wished the events to have occurred. The natural parent cannot achieve attachment to and affection from the child by legal compulsion at this late date. The law being incapable to accomplish the result by compulsion, she must seek, and ought soon to have better opportunity to achieve the result by means free of compulsion and confrontation, the common and preferred basis upon which human relations are built.
Chief Judge BREITEL and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and COOKE concur in memorandum.
Order affirmed.