Opinion
November 10, 1986
Appeal from the Supreme Court, Wyoming County, Dadd, J.
Present — Dillon, P.J., Denman, Green, Pine and Balio, JJ.
Order unanimously reversed on the law without costs, and matter remitted to Supreme Court, Wyoming County, for further proceedings in accordance with the following memorandum: Eric R. was born on December 17, 1980 in California to Suzanne R., then a 23-year-old native of western New York, and Michael T., a 26-year-old Californian. The parents never married. Suzanne returned to New York with the child when Eric was six months old and, except for a few weeks when Suzanne lived with a female friend, they lived with Suzanne's parents until Suzanne was killed in an automobile accident in March 1985. Eric was then four years old.
On July 2, 1985 Michael T. commenced a habeas corpus proceeding against the maternal grandparents for custody of his son, and on August 7, 1985 the maternal aunt and uncle, Michael and Barbara R., petitioned for custody. A hearing was held in Supreme Court on August 28, 1985, and on March 28, 1986 Supreme Court ruled that extraordinary circumstances had not been shown, so that the court could not reach the issue of the best interests of Eric, in accordance with Matter of Bennett v Jeffreys ( 40 N.Y.2d 543). The court awarded custody of Eric to the father, Michael T.
The court found that after Suzanne moved to New York, Michael persisted in attempting to convince her that they should marry and settle in Colorado, where he had favorable employment opportunities, and that he made at least three trips to New York to discuss this and see Eric. Michael sent Eric gifts and maintained contact by telephone. The court found that the record failed to establish surrender of custody to a nonparent, abandonment, or unfitness of the father, and noted that although Michael never supported Eric, support was neither requested nor required.
The court erred in failing to consider that Matter of Bennett v Jeffreys (supra, pp 544, 550) explicitly held that prolonged separation of parent and child for most of the child's life is a significant consideration in determining that extraordinary circumstances exist, along with the parent's lack of an established household of his own, his unwed state, and the attachment of the child to the custodian. We find that the circumstances here are within the ambit of "unfortunate or involuntary extended disruption of custody, or other equivalent but rare extraordinary circumstance which would drastically affect the welfare of the child" (Matter of Bennett v Jeffreys, supra, p 549). We remit the matter to Supreme Court for a hearing before a different Judge to determine what custodial arrangement would now be in Eric's best interest.