Cornell v. Hartley

Decision Date19 September 1967
Citation283 N.Y.S.2d 318,54 Misc.2d 732
PartiesIn the Matter of William CORNELL, Petitioner, v. Alberta S. HARTLEY, Respondent.
CourtNew York Family Court

S. James Matthews, Kingston, for petitioner.

John J. Lynch, Kingston, for respondent.

HUGH ROSS ELWYN, Judge.

By writ of habeas corpus referred to this Court by the Supreme Court, the Petitioner seeks the custody of his daughter Beth Lynne, age 7, who is now residing with her mother, the Respondent herein.

Beth Lynne is an illegitimate child born to the parties as the result of an illicit relationship which began approximately two years before the child's birth on September 11, 1960 and continued with but two interruptions until the respondent left the petitioner's home and place of business sometime in January of 1967. At first the parties lived together in an apartment in the City of Kingston, but in 1960 the petitioner purchased a bar and restaurant known as Rolling Acres in Glenford, New York to which the parties then removed and where they continued to reside as husband and wife until their final separation in April 1967. Although, after the petitioner's divorce there was no legal impediment to a marriage, the parties never married. They nevertheless held themselves out to certain members of the community as husband and wife.

Twice during the period of their relationship the mother left the Rolling Acres Bar and Restaurant each time taking the child with her--the first time being for three months in the year 1962 when the respondent resided in Poughkeepsie and the second time in the year 1965 when, from February to December she resided somewhere in New Jersey. After each absence, however, the respondent returned with her child to Rolling Acres where she resumed her relationship with the petitioner and continued to work as a barmaid and waitress without compensation except for food and lodging.

During the year 1966 the child Beth Lynne attended Kindergarten at the West Hurley School in the Onteora Central School District and continued to reside with her father at Rolling Acres even after her mother left permanently in April of 1967. 1 On or about May 17th the mother removed the child from the Rolling Acres establishment and since then the child and her mother have been residing at the home of the respondent's aunt in the City of Kingston where they occupy a seven room home with the aunt and uncle as the only other occupants.

A great deal of the testimony adduced in this case consists of a descriptive word picture of the Rolling Acres Bar and Restaurant and of Beth Lynne's daily life there while under the joint custody and control of both parents and subsequent to the mother's departure. The petitioner, apparently aware of the vulnerability of a Bar and Restaurant as a suitable environment for the rearing of a young child, was at considerable pains to portray the Rolling Acres Bar and Restaurant as a quiet, respectable establishment with separate living quarters for Beth Lynne and her mother and the Bar as a place from which Beth Lynne was carefully shielded. Moreover, even after the mother's departure sometime in the winter or early spring the petitioner made great and sincere efforts to see to it that Beth Lynne attended school regularly and that her life rolled serenely on undisturbed by the temporary absence of her mother. The Court has no doubt at all that the petitioner sincerely loves his daughter, that he is genuinely concerned for her welfare and that if given the opportunity is quite capable of providing an adequate home for his daughter. However, even conceding all this to the petitioner, such a concession does not resolve the issue in this case.

While the welfare of the child is the paramount and indeed the only proper consideration for the determination of the custody of a child whether legitimate or illegitimate (People ex. rel. Meredith v. Meredith, 272 App.Div. 79, 82, 69 N.Y.S.2d 462, 465, affirmed 297 N.Y. 692, 77 N.E. 8; People ex. rel. Mahoff v. Matsoui, 139 Misc. 21, 24, 247 N.Y.S. 112, 115), nevertheless, in the case of an illegitimate child the rules for making that determination are different than in the case of a legitimate child.

In the case of the legitimate child there is no prima facie right to the custody of the child in either parent (Domestic Relations Law § 70; § 240). 2 However, in the case of an illegitimate child, the mother of the child is in a favored position.

The rule applicable to the custody of an illegitimate child is that expressed by the Appellate Division in People ex. rel. Meredith v. Meredith, supra. There it is stated (272 App.Div. p. 82, 69 N.Y.S.2d p. 465):

'The rule is that the mother has the right to the custody of an illegitimate child as against the father, though the father has the right to the custody as against a stranger. 2 Kent's Com. (14th Ed.) 317; In the Matter of Doyle, 1 Clarke 154; People ex. rel. Trainer v. Cooper, 8 How.Pr. 288, 293. The very statement of the rule shows that, under certain circumstances, the father has a right to the custody of his illegitimate child. Where, as in the case at bar, it appears that the mother is not a proper and suitable person the Court, in behalf of the child, will interfere with the mother's custody of an illegitimate child and direct that it be placed elsewhere. Robalina v. Armstrong, 15 Barb. 247; People v. Landt, 2 Johns, 375. The proper statement of the rule is that the mother of an illegitimate child is prima facie entitled to its custody and, when she is a proper and suitable person, the court will award its custody to her as against the father or anyone else. 10 Carmody's New York Pleading and Practice, § 45, p. 69, and cases cited.' 3

In accordance with this rule and the exercise of discretion, the Courts have not hesitated to award the custody of an illegitimate child to its father to the exclusion of the mother where the mother was shown to be unfit and the Court was satisfied that the welfare of the child required such a determination (See e.g. People ex rel. 'Francois' v. 'Ivanova', 14 A.D.2d 317, 221 N.Y.S.2d 75 (visitation); People ex rel. Kessler v. Wehnert, Sup., 114 N.Y.S.2d 598; People ex rel. Mahoff v. Matsoui, supra, 139 Misc. 21, 247 N.Y.S. 112 (divided custody); People ex rel. Lewisohn v. Spear, 174 Misc. 178, 20 N.Y.S.2d 249; Matter of Anonymous, 12 Misc.2d 211, 172 N.Y.S.2d 186 (visitation); Matter of Norman, 26 Misc.2d 700, 205 N.Y.S.2d 260; Matter of Godinez v. Russo, 49 Misc.2d 66, 266 N.Y.S.2d 636). However, in each case where exclusive custody was awarded to the father, the mother was found to be an unfit or unsuitable custodian and where divided custody was awarded or visitation granted to the father the arrangement was found not to be detrimental to the child's welfare.

In this case, to rebut the mother's prima facie entitlement to the custody of her illegitimate child the petitioner sought to demonstrate her unfitness by his own testimony that (a) in the year 1962 the respondent left the Rolling Acres Bar and Restaurant taking the child with her and lived in Poughkeepsie for about six weeks; (b) in the year 1965 the respondent left the Rolling Acres Bar and Restaurant taking the child with her and lived in New Jersey for approximately seven months; (c) one night in February 1964 at about 12:30 A.M. he found the child crying in the back seat of a car which was parked in the parking lot of the Retreat Restaurant while the mother was inside at the bar; (d) on another occasion in the fall of 1966 at about 11:30, 12:00 o'clock at night he found the respondent and child at the T.P. Restaurant and Bar; (e) on still another occasion about three years ago when the respondent and child had been missing from home for about a day and a half the respondent and child were reported to have been at Armstrong's Bar and Restaurant; and (f) that the respondent frequently came home in an intoxicated condition. No proof other than the petitioner's testimony was offered in support of these charges.

Although the petitioner appears to have been displeased and much concerned by the respondent's and his daughter's absence from his home during their sojourn in Poughkeepsie for about six weeks in 1962 and in New Jersey for about seven months in 1965, these two events are without any particular significance except to demonstrate the instability of the parties' relationship, for there is no proof whatever that during these periods of time the child was in any way neglected by her mother or that the child suffered any ill effects from the change of environment.

The mother, of course, has her own explanation for her presence with the child at the T.P. Bar, which is that she stopped there with her brother and was there not more than a half hour. She also admits that on one occasion she left the child unattended for approximately 15--20 minutes in a parked car while she went into the Retreat Restaurant to await the preparation of some food she had ordered....

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  • Pierce v. Yerkovich
    • United States
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    ...Anonymous, 56 Misc.2d 711, 289 N.Y.S.2d 792 (granted); Matter of Anonymous 12 Misc.2d 211, 172 N.Y.S.2d 186 (granted); Cornell v. Hartley, 54 Misc.2d 732, 283 N.Y.S.2d 318 (granted if mother consents); cf. E.R. v. D.T., 77 Misc.2d 242, 353 N.Y.S.2d 612 (right of father to visit in appropria......
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