Opinion
December 29, 1993
Appeal from the Supreme Court, Oneida County, Aronson, Referee.
Present — Denman, P.J., Balio, Lawton, Doerr and Boehm, JJ. (Filed Nov. 24, 1993.)
Judgment unanimously reversed on the law without costs and petition granted. Memorandum: Petitioner and Ann R. Anderson were married in 1976 and divorced in September 1990. The divorce decree granted custody of the three infant children of the marriage to Ann R. Anderson and petitioner was granted visitation, which he regularly exercised. On March 22, 1992, Ann R. Anderson died in a motor vehicle accident and her Last Will and Testament named Mary K. and David L. Scribner, the children's maternal aunt and her husband, as the children's guardians. Petitioner commenced the present habeas corpus proceeding to gain custody of the children. Supreme Court denied petitioner's habeas corpus petition and granted custody of petitioner's three children to the Scribners.
It is a fundamental rule that a parent has a right to rear his child superior to that of a nonparent unless extraordinary circumstances are present. Extraordinary circumstances include "surrender, abandonment, unfitness, persistent neglect, 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, 40 N.Y.2d 543, 549). Here, there are no extraordinary circumstances to deprive petitioner of the right to rear his children. The record shows that after the divorce petitioner regularly exercised his visitation rights, showed a sincere interest in the children and faithfully made child support payments. Petitioner also built a home within a block of the marital residence so that he could maintain close contact with the children. Thus, petitioner did not abandon or surrender the children and was not separated from them for such an extended period of time so as to constitute extraordinary circumstances (see, Matter of Male Infant L., 61 N.Y.2d 420, 429; Matter of Pernice v Cote, 116 A.D.2d 945, lv denied 67 N.Y.2d 606; cf., Matter of Abendschein v Gatti, 105 A.D.2d 1101; People ex rel. Gallinger v Gallinger, 55 A.D.2d 1036).
The record also fails to show that petitioner was an unfit parent. Petitioner was diagnosed as suffering from post-traumatic stress disorder resulting from his Vietnam combat experiences, was receiving ongoing psychiatric counselling, and was taking medication for that disorder. Because there was no expert testimony that petitioner's psychiatric condition would have endangered the children or would have rendered petitioner incapable of providing appropriate care, his condition did not constitute extraordinary circumstances sufficient to deprive him of custody (see, Penders v Penders, 139 A.D.2d 963, 964). Additionally, the desire of the children to have their custody placed with the Scribners rather than petitioner is neither dispositive nor a compelling extraordinary circumstance (see generally, Sturm v Lyding, 96 A.D.2d 731; see also, Obey v Degling, 37 N.Y.2d 768, 770-771; Dintruff v McGreevy, 34 N.Y.2d 887, 888).
Because there was no showing of extraordinary circumstances to deprive petitioner of his right to custody of his children, his habeas corpus petition is granted (see, Tyrrell v Tyrrell, 67 A.D.2d 247, affd 47 N.Y.2d 937; Penders v Penders, supra; Matter of Pernice v Cote, supra).