Can a Child Be Seperated from His Parent If Circumstances Show That the Welfare of the Child Is Being Affected ?
In the Matter of Jenny L. S., v. Nicole M, 39 AD3d 1215, 834 N.Y.S.2d 773 (4th Dept, 2007), the Court held that "a finding of extraordinary circumstances is rare and the circumstances must be such that they drastically affect the welfare of the child.
The courts and the law are powerless to supplant parents, except for grievous cause or necessity or gross misconduct.
A parent will not be deprived of his right to custody merely because a court or social agency believes it can decide more wisely than the parent or believes it has found someone to better to raise the child".
The Mother voluntarily separated from her child for nine months when she relocated to New York from Virginia.
In the Matter of Michelle M. v. Thomas F., 42 A.D.3d 882, 839 N.Y.S.2d 892 (4th Dept, 2007) the Court held that the aunt failed to establish extraordinary circumstances.
The Father agreed that the aunt should have physical custody while he was in rehabilitation for substance abuse and that alone was insufficient to deprive him of custody.
There was no indication in the record that Father abandoned the child, was separated from the child for a prolonged period, that he had an unstable lifestyle, lacked an established household, associated with criminals, was convicted of any crime against children, was found to have neglected the child, or pay child support voluntarily.
In Ruggieri v. Bryan, 23 AD3d 991, 803 N.Y.S.2d 839 (4th Dept, 2005), one of the factors the Court considered was that the Mother voluntarily surrendered physical custody of the child to Respondent, she took no legal steps to regain custody of her child for approximately five years after Respondent obtained custody of him.
In Parker v. Tompkins, 273 AD2d 890, 708 N.Y.S.2d 791(4th Dept, 2000), the Court held that one of the factors was the psychological damage likely to be incurred by the child in the event that she was separated from her aunt and half brother.