Anonymous, In re

• Decision Date: 07 March 1958
• Citation: 172 N.Y.S.2d 186,12 Misc.2d 211
• Parties: In re ANONYMOUS.
• Court: New York Supreme Court

Page 186

172 N.Y.S.2d 186

12 Misc.2d 211

In re ANONYMOUS.

Supreme Court, Special Term, Kings County, Part II.

March 7, 1958.

Irwin Gray, New York City, for relator.

Defendants were not represented by counsel but appeared in person.

LOUIS L. FRIEDMAN, Justice.

By writ of habeas corpus, petitioner seeks custody of two infant children now residing with their mother, the female defendant herein.The male defendant, brother of the other defendant, was named solely for the purpose of securing the present address of the mother and has no other connection with this proceeding and all references to defendant hereinafter made apply only to the mother of these two children.

Petitioner and the defendant began living together in a common-law relationship in 1949, in Puerto Rico.No marriage ceremony ever took place and they continued to live together until the early part of 1958.Out of this relationship were born the two children who are the subject of the present controversy, and these two children are now aged six and eight years respectively.

Except for a period of one month during the year 1956, the parties to this proceeding and the two children lived together continuously as a family unit.On January 21, 1958, defendant left the home of petitioner taking the two children with her and taking up residence with another man with whom she had entered into a ceremony of marriage three days before that time, to wit, January 18, 1958.Her present husband is now supporting these two children.

Upon the hearing before this court, defendant was not represented by counsel and both she and her brother appeared and were heard by the court.Defendant claims that she left petitioner because of threats which he made against both her and her children and because she was fearful of his violence.She was further fearful, as she claims, that if given custody of the children, petitioner would take them to Puerto Rico and they would be outside of the jurisdiction of this court.She desires that custody remain with her, that petitioner be forever barred from seeing the children or having any visitation and she is willing to waive any claim for the children's support.

Although the present application is for custody of the children, petitioner through his attorney stated at the time of the hearing that only visitation is being sought, and the question now to be determined by the court is whether the putative father of these two children has any legal right to such visitation.

It is axiomatic that as between the mother and the putative father, the mother, prima facie is entitled to the custody of the child involved (see10 Carmody, New York Pleading and Practice, sec. 45, and cases cited therein;People ex rel. Meredith v. Meredith, 272 App.Div. 79, 69 N.Y.S.2d 462, affirmed297 N.Y. 692, 693, 77 N.E.2d 8, 9).It is only where it appears from the evidence before the court that the mother is not a proper or suitable person to have custody over said infant, that the court will interfere with such right to custody and will direct that the child be placed elsewhere.It was because of such circumstances that in the Meredithcase, supra, that custody of the illegitimate child was granted to the father, and that decision is one of a long line of authorities to the same effect.

It is elementary that the court's...