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Matter of Kreger v. Newell

Appellate Division of the Supreme Court of New York, Second Department
Nov 27, 1995
221 A.D.2d 630 (N.Y. App. Div. 1995)

Opinion

November 27, 1995

Appeal from the Family Court, Nassau County (Feiden, J.).


Ordered that the order and judgment is affirmed, without costs or disbursements.

This appeal involves a custody dispute between Barbara Newell and the respondent natural mother of the infant child. Newell argues, inter alia, that the Family Court improperly awarded permanent custody of the child to the respondent. We disagree.

It is well established that a natural parent has a claim of custody of his or her child, superior to that of all others, unless the parent has abandoned that right or is proved unfit to assume the duties and privileges of parenthood (see, People ex rel. Kropp v Shepsky, 305 N.Y. 465, 468; Matter of Male Infant L., 61 N.Y.2d 420, 426; Matter of Commissioner of Social Servs. of City of N.Y. [Tyrique P.], 216 A.D.2d 386; Matter of Stark v Kinnaw, 212 A.D.2d 943; Mazur v Mazur, 207 A.D.2d 61, 65; Matter of Archer W. v Commissioner of Social Servs., 173 A.D.2d 543, 544; Matter of Alfredo S. v Nassau County Dept. of Social Servs., 172 A.D.2d 528, 529; see generally, Matter of Michael B., 80 N.Y.2d 299). In the absence of "surrender, abandonment, persistent neglect, unfitness or other like extraordinary circumstances" (Matter of Bennett v Jeffreys, 40 N.Y.2d 543, 544), a parent may not be denied custody. The burden of establishing the existence of such "extraordinary circumstances" is upon the party seeking to deprive the natural parent of custody (see, Matter of Darlene T., 28 N.Y.2d 391, 394; Matter of Nadia Kay R., 125 A.D.2d 674, 676). Further, until the threshold of "extraordinary circumstances" has been satisfied, the question of the children's best interests is not reached (see, Matter of Male Infant L., supra; Matter of Commissioner of Social Servs. of City of N Y [Tyrique P.], supra; Matter of Stark v Kinnaw, supra, at 944; Matter of Archer W. v Commissioner of Social Servs., supra; Matter of Alfredo S. v Nassau County Dept. of Social Servs., supra).

The Family Court properly determined that Newell failed to establish the existence of extraordinary circumstances ( see, Matter of Katherine D. v Christine D., 187 A.D.2d 587, 588; cf., Matter of Nellie R. v Betty S., 187 A.D.2d 597). Although there was a factual dispute as to whether the respondent surrendered, abandoned, or neglected her children, the Family Court's resolution of the questions of credibility was supported by the record. Further, the analysis of the various factors to be taken into account in deciding a custody question is best made by the hearing court, because that court is in the most advantageous position to evaluate the testimony, character, and sincerity of the parties (see, Eschbach v Eschbach, 56 N.Y.2d 167; Matter of Lake v Van Wormer, 216 A.D.2d 735; Matter of Antionette M. v Paul Seth G., 202 A.D.2d 429; Matter of Katherine D. v Christine D., supra; Klat v Klat, 176 A.D.2d 922). Therefore, since Newell failed to make a threshold showing that extraordinary circumstances existed, the Family Court properly awarded permanent custody to the respondent.

We have examined the parties' remaining contentions and find them to be without merit. Thompson, J.P., Altman, Krausman and Goldstein, JJ., concur.


Summaries of

Matter of Kreger v. Newell

Appellate Division of the Supreme Court of New York, Second Department
Nov 27, 1995
221 A.D.2d 630 (N.Y. App. Div. 1995)
Case details for

Matter of Kreger v. Newell

Case Details

Full title:In the Matter of CHERYL KREGER, on Behalf of BEVERLY BAKER, Respondent, v…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Nov 27, 1995

Citations

221 A.D.2d 630 (N.Y. App. Div. 1995)
634 N.Y.S.2d 174

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