SUPREME COURT: COUNTY OF CHAUTAUQUA
In the Matter of a Proceeding for
Custody and/or Visitation of Minors
Under Article 6 of the Family Court Act
STEVEN M. SHREVE,
vs Docket #V-236-95
WENDE J. SHREVE,
LODESTRO, CASS, VANSTROM & EDWARDS
(Gregory J. Edwards, Esq.
of Counsel) for Petitioner
JOHN P. RICE, III, ESQ.
Attorney for Respondent
CHARLES T. HALL, ESQ.
DECISION and ORDER
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
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
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
SUPREME COURT JUSTICE