Godinez v. Russo

Decision Date19 January 1966
Citation49 Misc.2d 66,266 N.Y.S.2d 636
PartiesPaternity Petition of Olga GODINEZ, Petitioner, v. Donald RUSSO, Respondent.
CourtNew York Family Court

Wilbur J. Spitzer, Yonkers, for petitioner.

Franklyn L. Lowenthal, Yonkers, for respondent.


These are two paternity proceedings affecting the two children of the parties, the hearing upon which has been consolidated for the purposes of this decision.

The Respondent, DONALD RUSSO, has admitted paternity of both of the children, and an order of filiation is directed to be entered.

The Respondent, however, has filed an application with the Court wherein he requests that an order should be entered herein directing that custody of the two children of the parties be awarded to him as their putative father.

In custody proceedings concerning a child born in wedlock, the Courts of this State have repeatedly stated that the concern of the Court in its status as the guardian of all infants, and by virtue of its paternal jurisdiction is concerned solely with what is deemed for the best interest and welfare of the infant. Finlay v. Finlay, 240 N.Y. 429, 148 N.E. 624, 40 A.L.R. 937; In the Matter of Lee, 220 N.Y. 532, 116 N.E. 352; Matter of Bock (Breitung), 280 N.Y. 349, 21 N.E. 186. This judicial mandate is reflected in the language of Section 70 of the Domestic Relations Law relating to habeas corpus proceedings, which reads in part as follows:

'* * * in all cases there shall be no prima facie right to the custody of the child in either parent, but the court shall determine solely what is for the best interest of the child, and what will best promote its welfare and happiness, and make award accordingly.'

In questions of custody relating to the child born out of wedlock, the Courts of this State have enunciated the rule that the natural mother is prima facie entitled to the custody of such child, subject, however, to the circumstance that if she be proved an unfit person, then custody may be awarded to the putative father or to some other person. People ex rel. Meredith v. Meredith, 272 A.D. 79, 69 N.Y.S.2d 462, aff'd. 297 N.Y. 692, 77 N.E.2d 8; People ex rel. Kessler v. Wehnert, Sup., 114 N.Y.S.2d 598; People ex rel. Lewisohn v. Spear, 174 Misc. 178, 20 N.Y.S.2d 249.

This rule relating to the child born out of wedlock and the disqualification of the natural mother is succinctly stated in Matter of Anonymous, 12 Misc.2d 211, at page 213, 172 N.Y.S.2d 186, at page 188, in the Official Reports in the following language:

'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.'

The testimony in the instant proceeding includes by stipulation testimony taken before this Court in a previous neglect proceeding filed by the putative father which was dismissed for reasons not relevant to this determination. The evidence establishes that the natural mother at the age of thirteen bore an out of wedlock child in Puerto Rico, came to this country and shortly before the beginning of her relationship with the present putative father, had an out of wedlock child in the State of New Jersey, then entered into a de facto relationship with the present putative father and bore him the two children whose custody is being sought in this proceeding and then entered into a marriage relationship with her present husband by whom at the time of trial she was carrying a child. Admittedly, sexual relations out of wedlock would not of themselves serve to disqualify the natural mother from custody. More importantly, however, instinct through the evidence is a pattern of behavior which indicates on the part of the natural mother a failure to possess or observe those normal and natural instincts which are customarily classified as 'mother love.'

The Court, faced with a factual situation close to the instant case in Matter of Virginia Norman, 26 Misc.2d 700, 205 N.Y.S.2d 260, determined that a putative father would be...

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6 cases
  • Rand v. Rand
    • United States
    • New York City Court
    • May 28, 1968
    ...(Family Court Act, Sections 352, 354, 355, 356, 357, 365, 368, 612, 631, 634), paternity proceeding (cf. Matter of Godinez v. Russo, 49 Misc.2d 66, 266 N.Y.S.2d 636), delinquency proceeding, and a person-in-need-or-supervision proceeding (Family Court Act, Sections 756, 759, 775, 776, 777, ......
  • Merrick v. Merrick
    • United States
    • U.S. District Court — Southern District of New York
    • November 16, 1977
    ...basis of federal jurisdiction. 6 See, Stone v. Chip, 68 Misc.2d 134, 326 N.Y. S.2d 520 (Fam.Ct., N.Y.Co.1971); Godinez v. Russo, 49 Misc.2d 66, 266 N.Y.S.2d 636 (Fam. Ct., Westchester Co., ...
  • Cornell v. Hartley
    • United States
    • New York Family Court
    • September 19, 1967
    ...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 unsu......
  • Anonymous v. Anonymous
    • United States
    • New York City Court
    • May 6, 1968
    ...at various times, that the father might have some visitation rights, only with the mother's consent. In the case of Godinez v. Russo, 49 Misc.2d 66, 266 N.Y.Supp.2d 636, the Court disagreed with the distinction between legitimate and illegitimate children insofar as the latter in custody ma......
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