Cleaves, In re

Decision Date30 July 1958
Citation12 Misc.2d 218,176 N.Y.S.2d 812
PartiesIn the Matter of Clarence CLEAVES, Jr., Respondent. Children's Court, Saratoga County
CourtNew York Children's Court

Sheridan P. Wait, Saratoga Springs, for petitioner.

George F. Perkins, Saratoga Springs, for respondent.

RICHARD J. SHERMAN, Judge.

On July 22, 1958, Maria Voordeckers Cleaves presented a petition to this Court, praying that the custody of Mary Gertrude Cleaves, a child be continued during the term of said Order of Support and Protection, pursuant to the Order of the Appellate Division; and alleging that respondent has failed to furnish, in accordance with his means and ability, fair and reasonable support for petitioner and the child for whose support respondent is chargeable, having provided nothing since on or about April 18, 1958.

It is necessary to review the proceedings to date. A previous Order of this Court granted custody of the child to the petitioner herein; and the respondent was directed to pay for the support of the child and Maria Voordeckers Cleaves, the wife of the Respondent, and the stepmother and aunt of said child.

Subsequently, the respondent obtained a writ of Habeas Corpus from the Honorable Willard L. Best, Justice of the Supreme Court, and by his Order, custody of the child was granted to the respondent herein. This Order as a matter of course superseded the Order of the Children's Court and the Support Order in that Court was cancelled.

Upon appeal to the Appellate Division, the Order of the Honorable Willard L. Best, Justice of the Supreme Court, was reversed, 175 N.Y.S.2d 736, 740. I quote a portion of the Opinion:

'Upon our finding that the defendant has established not only the petitioner's (the father) parental unfitness but his abandonment of his custodial rights as well, we turn to the remaining issue. That the child's welfare would be promoted by the award of custody to defendant is clear. * * * The order should be reversed, on the law and the facts, the writ dismissed, and custody awarded to defendant (petitioner herein).'

On July 25, 1958, trial was held in the present non-support case. Petitioner appeared by Sheridan P. Wait, Esq., and Respondent by George F. Perkins, Esq.

The respondent by his attorney demanded custody of the child; and objected to the support proceeding on the ground that the Order of Honorable Willard L. Best, Justice of the Supreme Court, still prevailed upon the question of custody in that the Order of the Appellate Division did not grant custody to the petitioner herein and submitted that the child is not in the custody of Mrs. Cleaves, the petitioner. Thereupon, the respondent served a Notice of Appeal from the decision of the Appellate Division on the attorney for the petitioner. The Court denied the motion, for it appears that the child is with the petitioner and further that the findings of the Appellate Division were '1. Petitioner-respondent-appellant (father) is an unfit person to have custody of said infant.

'2. Petitioner (father) abandoned his...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT