# Tucker v. Martin

> Appellate Division of the Supreme Court of the State of New York · July 2, 2010 · 75 A.D.3d 1087

URL: https://www.frixlaw.com/law-library/cases/5805369

## Case

- **Full name:** In the Matter of Robert A. Tucker v. Eric R. Martin, Sr.
- **Court:** Appellate Division of the Supreme Court of the State of New York
- **Decided:** July 2, 2010
- **Citations:** 75 A.D.3d 1087; 904 N.Y.S.2d 605
- **Precedential status:** Published
- **Opinion:** Dissent by Centraferadotto
- **Judges:** Centra, Feradotto
- **Cited by:** 6 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

Centra, J.P., and Feradotto, J. (dissenting).
We respectfully dissent inasmuch as we cannot agree with the majority that nonparent Eric R. Martin, Sr., a respondent in appeal No. 1 and *1092 the petitioner in appeal No. 2, met his burden of establishing the requisite “extraordinary circumstances” to deprive the child’s biological father, Robert A. Tucker, the petitioner in appeal No. 1 and the respondent in appeal No. 2, of custody of his daughter.
The child who is the subject of this proceeding is the daughter of the late Michele M. Mackey, a respondent in appeal No. 1, and Tucker. When the child was two years old, the mother became Martin’s live-in girlfriend, and the child and the mother resided with Martin for the next 12 years, along with three of the child’s half-brothers. The child was born in 1994, and in 2000 the mother was granted custody of the child, with extensive visitation to the father, pursuant to a Family Court order entered upon stipulation of the parties. After the mother passed away in 2008, both the father and Martin petitioned for custody of the child. By the order in appeal No. 1 Family Court dismissed the father’s petition, and by the order in appeal No. 2 the court granted primary physical custody of the child to Martin. The father has appealed and, notably, Martin has not appeared in these appeals.
There can be no question that “as between a parent and a nonparent, the parent has a superior right to custody that cannot be denied unless the nonparent establishes that the parent has relinquished that right because of ‘surrender, abandonment, persisting neglect, unfitness or other like extraordinary circumstances’ ” (Matter of Gary G. v Roslyn P., 248 AD2d 980, 981 [1998] [emphasis added], quoting Matter of Bennett v Jeffreys, 40 NY2d 543, 544 [1976]). As the Court of Appeals stated even more forcefully in Matter of Male Infant L. ( 61 NY2d 420, 427 [1984]), “[s]o long as the parental rights have not been forfeited by gross misconduct ... or other behavior evincing utter indifference and irresponsibility . . . , the [biological] parent may not be supplanted . . . .” “Indeed, for a court to award custody of a child to a nonparent without proof of the parent’s disqualification is a denial of the parent’s constitutional rights” (Raysor v Gabbey, 57 AD2d 437, 440 [1977], citing Stanley v Illinois, 405 US 645, 651 [1972]). Here, it is undisputed that the father did not surrender, abandon, or neglect the child, and both Martin and the Attorney for the Child acknowledge that the father is a fit and, indeed, a good parent. Thus, the issue before the court was whether Martin established the requisite “ ‘equivalent but rare extraordinary circumstance’ ” (Matter of Michael G.B. v Angela L.B., 219 AD2d 289, 292 [1996]), which is necessary to warrant overriding the “right and responsibility of a [biological] parent to custody of her or his child” (Bennett, 40 NY2d at 549 ). *1093 “Without a finding of the existence of extraordinary circumstances, ‘the inquiry ends’ and the court will not reach the issue of the best interests of the child” (Matter of Jody H. v Lynn M., 43 AD3d 1318, 1318 [2007]).
We agree with the father that Martin failed to meet his burden of establishing the existence of extraordinary circumstances, as that term is defined by the Court of Appeals in Bennett ( 40 NY2d at 544 ; see Matter of Judware v Judware, 197 AD2d 752, 753 [1993]). The Attorney for the Child and Martin relied on the following circumstances in support of Martin’s petition for custody: (1) the death of the mother; (2) the length of Martin’s relationship with the child; (3) Martin’s proximity to the child’s friends and extended family; (4) the father’s relocation to Pittsburgh to pursue his education; and (5) the desire of the child to remain with Martin. While we in no way seek to minimize such circumstances, we simply cannot conclude that they are “on a level with unfitness, abandonment, persistent neglect or other ‘gross misconduct’ or ‘grievous cause’ ” (Male Infant L., 61 NY2d at 429 [emphasis added]).
The death of a custodial parent is not an extraordinary circumstance sufficient to deprive a biological parent of the custody of his or her child (see e.g. Matter of Tyrrell v Tyrrell, 67 AD2d 247, 251 [1979], affd 47 NY2d 937 [1979]). While the “protracted separation” of a parent from a child may, when coupled with other factors, be sufficient to establish extraordinary circumstances (Bennett, 40 NY2d at 550 ), the record clearly establishes that there was no such separation between the father and the child in this case. Quite to the contrary, the record reflects that, since the child’s birth, the father has consistently exercised biweekly visitation with the child as well as extended visitation in the summer, and has paid child support (see generally Matter of Woodhouse v Carpenter, 134 AD2d 924, 925 [1987]). Thus, the majority’s characterization of the involvement of the father in the child’s life as “limited” is simply not supported by the record. Martin testified that, before the father moved to Pittsburgh approximately 18 months before the hearing in this matter, the father exercised “75-80 percent” of his court-ordered visitation, which consisted of every other weekend, every other holiday, and two weeks each summer. Although the visitation of the father allegedly decreased after he moved to Pittsburgh, it is undisputed that he continued to maintain regular contact with the child and, indeed, the child spent three weeks with the father in Pittsburgh during the summer before the mother’s death. Martin conceded that, even after the father moved to Pittsburgh to pursue his education, *1094 the father drove to New York to visit with the child one to two times per month. On these facts, the conclusion that extraordinary circumstances exist is simply not warranted (see Matter of Guzzey v Titus, 220 AD2d 976 [1995], lv denied 87 NY2d 807 [1996]; Woodhouse, 134 AD2d at 924-925 ; cf. Matter of Holmes v Glover, 68 AD3d 868 [2009]; Matter of Mace v Mace, 45 AD3d 1193 [2007], lv denied 10 NY3d 701 [2008]).
As for the child’s relationship with Martin, it is well established that “the disruption of a psychological bond between a child and his or her nonparental caregiver does not rise to the level of extraordinary circumstances absent ‘unfitness, abandonment, persistent neglect or other gross misconduct or grievous cause’ ” (Matter of Burghdurf v Rogers, 233 AD2d 713, 715 [1996], lv denied 89 NY2d 810 [1997]; see Jody H., 43 AD3d at 1319 ). Although Martin alleged in his petition that the child “would suffer emotionally if separated from [the] family [with whom] she was raised,” there is simply no evidence in the record that awarding custody to the father would result in “psychological trauma . . . grave enough to threaten destruction of the child” (Bennett, 40 NY2d at 550 ). The court herein explicitly recognized that the child “loves both her father and . . . Martin,” and described the child as a “wonderful, articulate young lady.” Significantly, Martin candidly acknowledged that, prior to the mother’s brief illness and resultant death, the child had expressed a desire to live with the father and, indeed, she chose to live with the father and attended school in Pittsburgh in January 2009. In any event, the desire of the child at the time of the hearing to remain with Martin does not constitute an extraordinary circumstance justifying an award of custody to Martin against the wishes of the father (see People ex rel. Anderson v Mott, 199 AD2d 961, 962 [1993]).
In our view, in upholding the court’s award of custody to Martin, the majority inappropriately conflates extraordinary circumstances with a best interests determination. However, as previously noted, “[a]bsent a showing of extraordinary circumstances sufficient to deprive the [biological] parent of a superior right to custody, the question of best interests of the child is not reached” (Woodhouse, 134 AD2d at 925 ; see Jody H., 43 AD3d at 1318 ; Tyrrell, 67 AD2d at 248 ). In its analysis of extraordinary circumstances, the majority discusses the school that the child would attend if custody were awarded to the father, the father’s financial situation, and the father’s home environment. While such considerations are relevant in conducting a best interests analysis, we submit that they are wholly insufficient to establish extraordinary circumstances sufficient to divest a biological *1095 parent of custody of his or her child. As the Court of Appeals stated in Bennett ( 40 NY2d at 548 ), “neither decisional rule nor statute can displace a fit parent because someone else could do a ‘better job’ of raising the child in the view of the court . . . , so long as the parent. . . ha[s] not forfeited [his or her] ‘rights’ by surrender, abandonment, unfitness, persisting neglect or other extraordinary circumstance. These ‘rights’ are not so much ‘rights,’ but responsibilities which reflect the view . . . that, except when disqualified or displaced by extraordinary circumstances, parents are generally best qualified to care for their own children and therefore entitled to do so” (emphasis added). In any event, we note that the record reflects that the father has an established residence with a separate bedroom for the child, and that he is able to provide for the child financially through his full-time employment, financial aid, and public assistance.
Finally, we conclude that the majority’s reliance on allegations made by Martin during an informal proceeding after the hearing is inappropriate. Those statements were neither made under oath nor elicited by the court, the father was not present to rebut them, and the father’s attorney repeatedly objected to the court’s consideration of the statements. We note that the unsupported statement relied upon by the majority to the effect that the father’s posthearing behavior was “emotionally tearing [the child] apart” was made by Martin, not the child or the Attorney for the Child, and there is no indication in the record that the Attorney for the Child agreed with Martin’s characterization of the father’s posthearing behavior.
We therefore would reverse the order in appeal No. 1, grant the father’s petition, and award sole custody of the child to the father, and we would reverse the order in appeal No. 2 and deny Martin’s petition. Present—Centra, J.P., Fahey, Peradotto, Lindley and Pine, JJ.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/5805369. Public record. Not legal advice.