Anonymous, Application of

• Decision Date: 06 January 1958
• Citation: 170 N.Y.S.2d 178,10 Misc.2d 1076
• Parties: Application of ANONYMOUS, Petitioner, for an order awarding her custody of her infant son.
• Court: New York Supreme Court

Page 178

170 N.Y.S.2d 178

10 Misc.2d 1076

Application of ANONYMOUS, Petitioner, for an order awarding

her custody of her infant son.

Supreme Court, Special Term, Nassau County, Part I.

Jan. 6, 1958.

Joseph R. Caliendo, Brooklyn, for petitioner.

Shapiro, Driscoll & Gottschalk, Franklin Square, for respondent. Henry A. Shapiro, Franklin Square, of counsel.

MARIO PITTONI, Justice.

This is a proceeding based upon a petition for the return of an infant male child to the natural mother. It was begun by the issuance of a writ of habeas corpus directed against Dr. E. M. on or about July 9, 1957, and a later writ directed against the present respondent, on or about August 21, 1957. Hearings were thereafter had in September and October, and briefs were thereafter exchanged.

On October 10, 1956, a male child was born to an unmarried girl of eighteen and a half, the petitioner. The child was delivered by Dr. E. M. who was the petitioner's family doctor and also the respondent's family doctor.

According to Dr. E. M. there was a conversation among the petitioner, her mother, and himself in August, 1956. They discussed the impending birth of the child, and the two women, the petitioner and her mother, expressed the desire to give the expected child away for adoption. Dr. E. M. tried to discourage this procedure.

Later, when the baby was born, the petitioner and her mother again told Dr. E. M. they wished to give the baby away for adoption. This testimony by Dr. E. M. is corroborated to a certain extent by L. J., the former attorney for the respondent, who spoke to the petitioner and her mother at the hospital on October 13, 1956, three days after the birth of the child. He testified that he told the petitioner and her mother that he represented persons who wanted to adopt the baby and that the petitioner and her mother stated that they could not keep the child. The petitioner and her mother, however, insist that in conversations with Dr. E. M. and L. J. they understood that the child was to be given away only for temporary custody and that the petitioner would have the right to decide within a year as to the final disposition of her child. The petitioner and her mother insist that all their conversations with Dr. E. M. and L. J. took place while they were in a state of mental confusion. Be that as it may, the baby was delivered to Dr. E. M.'s office four days after birth, and the very same day Dr. E. M. turned the child over to a representative of the respondent. No documents of any kind were ever signed for the transfer or custody of the child. The hospital and medical bills for the birth and after care were paid for by petitioner's parents.

On or about Election Day in November, 1956, at the request of L. J., the petitioner's mother sent him the baby's birth certificate. It seems that there was another conversation thereafter between L. J. and the petitioner's mother, wherein the mother suggested that they send some Christmas presents to the baby and L. J. dissuaded her from doing so.

Thereafter, the petitioner asked for the return of the baby. According to her, 'In November I went back to Dr. E. M. and I expressed my desire to have the baby back.' Dr. E. M. stated, in response to a question, 'When is the first time that you knew, if at all, that she wanted the baby back? * * * Around February of 1957.' Dr. E. M. also admits that in January, 1957 the petitioner did ask him where the baby was. L. J. also says that the petitioner's mother told him in February by telephone and in early March in person that the petitioner wanted her back. Several discussions then did follow in April and May among the petitioner's parents, L. J., and an attorney for the petitioner and her parents. These all concerned the demand by the petitioner and her parents that the baby be returned.

There is no evidence of any kind to show any mercenary or ulterior motive involved in these demands. In fact, the petitioner's father is the manager of a store at a salary of $9,000 per year, and her mother is also employed at a fair salary. Both her mother and father expressed desires to take the child into their home and to care for the child and the petitioner.

The basic law involved in this case is stated best by Judge Fuld in People ex rel. Kropp v. Shepsky, 305 N.Y. 465, 468-470, 113 N.E.2d 801, 803.

'It has often been said that a child's welfare is the first concern of the court upon a habeas corpus proceeding, where the judge acts 'as parens patriae to do what is best for the interest of the child.' Finlay v. Finlay, supra, 240 N.Y. 429, 433, 148 N.E. 624, 626, 40 A.L.R. 937; see, also, People ex rel. McCanliss v. McCanliss, 255 N.Y. 456, 175 N.E. 129, 82 A.L.R. 1141; People ex rel. Pruyne v. Walts, 122 N.Y. 238, 242, 25 N.E. 266, 267. However valid this statement may be in a contest for custody involving the parents alone, it cannot stand without qualification in a contest between parents and nonparents. The mother or father has a right to the care and custody of a child, superior to that of all others, unless he or she has abandoned that right or is proved unfit to assume the duties and privileges of parenthood. See, e. g., People ex rel. Portnoy v. Strasser, supra, 303 N.Y. 539, 542, 104 N.E.2d 895, 896; People ex rel. Beaudoin v. Beaudoin, 193 N.Y. 611, 86 N.E. 1129, affirming 126 App.Div. 505, 110 N.Y.S. 592; Matter of Livingston, 151 App.Div. 1, 7, 135 N.Y.S. 328, 331; cf. Matter of Gustow, 220 N.Y. 373, 115 N.E. 995. Accordingly, we have sanctioned withholding the child from the custody of a parent who has abandoned or transferred the parental right, either expressly or by implication. See, e. g., Matter of Benning [Nigro], 303 N.Y. 775, 103 N.E.2d 735; Matter of Gustow, supra, 220 N.Y. 373, 115 N.E. 995; cf. Matter of Bock [Breitung], 280 N.Y. 349, 21 N.E.2d 186; Petition of Stuart, 280 N.Y. 245, 20 N.E.2d 741. And, quite obviously, a parent who is 'a drunkard, an incompetent, a notoriously immoral person, cruel or unkind towards his child', Matter of Gustow, supra, 220 N.Y. 373, 377, 115 N.E. 995, 997, may have the child taken from him.

'Apart, however, from such special and weighty circumstances, the primacy of parental rights may not be ignored. In no case may a contest between parent and nonparent resolve itself into 'a simple factual issue as to which [affords] the better surroundings, or as to which party is better equipped to raise the child.' People ex rel. Portnoy v. Strasser, supra, 303 N.Y. 539, 542, 104 N.E.2d 895, 896. And that is true even if the nonparent initially acquired custody of the child with the parent's consent. See, e. g., People ex rel. Beaudoin v. Beaudoin, supra, 126 App.Div. 505, 507, 110 N.Y.S. 592, affirmed 193 N.Y. 611, 86 N.E. 1129; cf. Matter of Bistany, 239 N.Y. 19, 145 N.E. 70.

'Except where a nonparent has obtained legal and permanent custody of a child by adoption, guardianship or otherwise, he who would take or withhold a child from mother or father must sustain the burden of establishing that the parent is unfit and that the child's welfare compels awarding its custody to the nonparent. See, e. g., People ex rel. Portnoy v Strasser, supra, 303 N.Y. 539, 542, 104 N.E.2d 895, 896; Matter of Gustow, supra, 220 N.Y. 373, 115 N.E. 995. Where consent initially given to a child's adoption, often under the pressure of circumstances, is thereafter withdrawn (see, e. g., Domestic Relations Law, § 112, subd. 7), the case falls within the rule and not within the exception. In other words, the burden rests, not, for instance, upon the mother to show that the child's welfare would be advanced by being returned to her, but rather upon the nonparents to prove that the mother is unfit to have her child and that the latter's well-being requires its separation from its mother. Cf. Matter of Bock [Breitung], supra, 280 N.Y. 349, 353, 21 N.E.2d 186, 187; Matter of Thorne, 240 N.Y. 444, 449-450, 148 N.E. 630, 631; Matter of Bistany, supra,...