Z v. A
| Decision Date | 18 May 1971 |
| Citation | 320 N.Y.S.2d 997,36 A.D.2d 995 |
| Parties | In the Matter of Loretta Z * , Appellant, v. Clinton A *, Respondent. Supreme Court, Appellate Division, Third Department |
| Court | New York Supreme Court — Appellate Division |
Nathan G. Hand, Monticello, for appellant.
Clinton 'A', respondent pro se.
Before HERLIHY, P.J., and REYNOLDS, STALEY, SWEENEY and SIMONS, JJ.
Appeal from an order of Family Court, Sullivan County, entered March 27, 1970, which granted custody of an illegitimate child to respondent, the father, and accorded visitation rights to appellant, the mother.
The record supports the finding of Family Court that neither appellant nor respondent were unfit to care for this three year old boy and that each had affection for the child and interest in his welfare. On the basis of that finding and section 70 of the Domestic Relations Law, which directs that there shall be no prima facie right to the custody of the child to either parent, the Family Court determined that the best interest of the child would be promoted by awarding custody to the father. Its decision was primarily grounded on two considerations, first, that the child would then be in a home environment in which both a father and 'mother' were present (respondent was living with another woman), and second, since there were no other children in the father's home, the respondent would be better able to care for the child than the natural mother, who is on welfare and attempting to raise other young children.
Under established law, the mother of an illegitimate child is prima facie entitled to its custody if she is a proper and suitable person, even as opposed to the child's father. (People ex rel. Meredith v. Meredith, 272 App.Div. 79, 69 N.Y.S.2d 462, affd. 297 N.Y. 692, 77 N.E.2d 8; Matter of Norcia v. Richard, 32 A.D.2d 656, 300 N.Y.S.2d 608, affd. sub. nom. Matter of Anonymous v. Anonymous, 26 N.Y.2d 740, 309 N.Y.S.2d 40, 257 N.E.2d 288.) This is particularly so with respect to children of tender years, whose needs are generally considered better cared for by the mother. (Sheil v. Sheil, 29 A.D.2d 950, 289 N.Y.S.2d 86.) While the primary responsibility of the courts is to look to the child's welfare and interests when the question of custody is raised, section 70 of the Domestic Relations Law has been interpreted as granting this preferential consideration to a fit mother of an illegitimate child. (Cf. Matter of Anonymous v. Anonymous, Supra, dissent per Scileppi, J., 26 N.Y.2d at 745--746, 309...
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