Guardianship of Cuddihy, In re

• Decision Date: 04 December 1957
• Citation: 169 N.Y.S.2d 89,8 Misc.2d 450
• Parties: GUARDIANSHIP OF Robert Anthony CUDDIHY et al. Application for the Appointment of a General Guardian of the Persons and Estates of Robert Anthony Cuddihy, Edith Therese Cuddihy, Sean Thomas Cuddihy, Michael Elizabeth Cuddihy, and Christopher Kevin Cuddihy, all infants under the age of 14 years. Surrogate's Court, Suffolk County
• Court: New York Surrogate Court

Page 89

169 N.Y.S.2d 89

8 Misc.2d 450

GUARDIANSHIP OF Robert Anthony CUDDIHY et al.

Application for the Appointment of a General Guardian of the

Persons and Estates of Robert Anthony Cuddihy, Edith Therese

Cuddihy, Sean Thomas Cuddihy, Michael Elizabeth Cuddihy, and

Christopher Kevin Cuddihy, all infants under the age of 14 years.

Surrogate's Court, Suffolk County.

Dec. 4, 1957.

Frank A. Jablonka, Riverhead, for petitioner.

Schwartz, Nathanson & Cohen, New York City, for respondent.

Paul M. Greene, Patchogue, Special Guardian for Infants.

EDGAR F. HAZLETON, Surrogate.

This Court has denied the application of the paternal grandmother for letters of guardianship and awarded the guardianship of the infants' persons to their mother (Matter of Cuddihy, Sur., 167 N.Y.S.2d 741). Previously, their mother and father, each divorced and remarried, had fought out the question of their custody in a habeas corpus proceeding in the Supreme Court, Suffolk County, which terminated with custody being given to the father, who was killed accidentally in July of this year. Since then, the children have been in the custody of their grandmother and stepmother, the latter living with and having the effective control of them.

The decrees appointing their mother guardian of the infants' persons, which have been submitted on her behalf contain directions to the stepmother to surrender the children to her. These provisions are not acceptable to the court. While it is anticipated that the stepmother will surrender the children to their mother upon her appointment as guardian, in the event she does not so act, a habeas corpus proceeding--the traditional method for obtaining the release or custody of one unlawfully detained--would appear to be the proper way to enforce the guardian's right to custody. Since the jurisdiction of the Supreme Court anent custody is not foreshortened by the fact that a guardian has been appointed for an infant, as is so clearly set forth by our Court of Appeals in Matter of Lee, 220 N.Y. 532, at page 539, 116 N.E. 352, at page 355, there would appear no justification for this court to anticipate a question, the resolution of which would properly lie in another forum. The inclusion of the proposed directives to the stepmother would in effect be doing just this. I am mindful that the father of these children, to whom custody was granted, is now dead; and further, that the stepmother has custody of them by virtue of no order of any court (Cf....