In the Matter of a Proceeding for

Custody and/or Visitation of Minors

Under Article 6 of the Family Court Act



vs Docket #V-236-95





(Gregory J. Edwards, Esq.

of Counsel) for Petitioner


Attorney for Respondent


Law Guardian



Because Adam, the child involved in this custody

case, has run away from the home of his father

(Petitioner) and is currently in a Safe Home, Respondent

mother applies for temporary custody or such other relief

as might be proper under the circumstances.

The Court conducted an incamera conference with the

infant, Adam, who desires to live with his mother, but, a

foster home would be his second choice.

On January 9, 1995, at a hearing on the application,

Petitioner (the father) stated he would give up the right

to physical placement because of the effect unfounded

child abuse accusations were having on his youngest

children. However, he opposes placement with Respondent


The mother testified she lives with her daughter in a

one bedroom apartment; works full time at Stateside Motors

as a sales person; that she gave up physical placement of

Adam to the father because she had other priorities; that

she was on some form of probation after investigation by

Illinois authorities of an accusation by her daughter of a

choking incident; that she was involved with drugs

(cocaine) while living in Illinois, but, has not used

drugs for over a year; that her daughter is attending

school at Maple Grove where she is a cheerleader; that she

did not interfere with Adam's placement with his father.

The father and step mother testified they wanted

Adam in the family, but, Respondent was interfering with

custody, always wanting to change dates and times on short

notice, and feel Respondent has encouraged Adam to rebel

against petitioner's authority; that they suspected

Respondent was behind unfounded accusations of child abuse

which Social Services and the Sheriff's Department were

called upon to investigate; that these unfounded

accusations have resulted in petitioner's other two

children to be taken out of school for interrogating by

Child Protective Services Investigators and disrupted the

family; that when Adam came to live with them he lacked

discipline, was unkempt, lacked appropriate cleanliness

habits; that since Adam has lived with them he has

improved in school; improved his habits; but, since

Respondent's return to the County, they have had

discipline problems with Adam that they attribute to

Respondent's influence.

The Court is convinced that the father has made a

sincere effort to provide Adam with a good home and

instill discipline, but that circumstances and events

since Respondent returned to the area have frustrated and

disrupted the Shreve family.

However, in view of the father's understandable

waiver of the right of physical placement as granted by

this Court, the Court has no alternative but to award

temporary physical placement with the mother, pending

probation investigation and psychiatric evaluations.

"In the absence of 'surrender, abandonment,

persistent neglect, unfitness or other like circumstances'

(Matter of Bennett v Jeffreys, 40 NY2d 543, 544) a parent

may not be denied custody. The burden of establishing

such 'extraordinary circumstances' is upon the party

seeking to deprive the natural parent of custody. . . .

[U]ntil the threshold of 'extraordinary circumstances' has

been satisfied, the question of the children's best

interest is not reached... ." KathrineD.vsChristineD.

187 A.D.2d 587.

It is the policy of the law to keep the children with

their natural parents where at all possible, unless there

is some sound or compelling reason for denying it.

"A parent cannot be displaced merely because

someone else could do a better job of raising the child.

Thus, so long as the parental rights have not been

forfeited by gross misconduct or other behavior evincing

utter indifference and irresponsibility, the natural

parent must not be supplanted." See 45 NYJur. 383, page


If justified by the facts, a court can order

that neither parent be given full time, physical custody

of the child where the child's welfare demands it. See 45

NYJur 357, page 463. However, the Court must base its

decision on the situation existing at the time the custody

(or placement) issue is before the Court.

Thus, while there are disturbing allegations,

some suspicions, some history of drug use, and possible

criminal proceedings involving previous employment, there

is not enough here to deny the mother temporary physical

placement where the father has given up his right to

physical placement.

However, presently the mother's home situation is not

adequate. She lives in a 1 bedroom apartment with her 17

year old daughter. It will take time to find appropriate


Until such time as the mother has obtained

suitable housing, the Court directs the Law Guardian to

make an investigation and home visit to the home of Rod

and Terry Smith, of Ashville, New York, and, if the Law

Guardian approves the Smith home, the Law Guardian shall

place Adam with said Rod and Terry Smith on a temporary


The Court also orders a probation department

investigation of the mother, including any Illinois

criminal record, and psychological evaluations. The

father is granted rights of visitation comparable to the

rights previously granted to the mother, and both may

visit while Adam is with the Smiths.

Dated: January , 1996

Mayville, New York