Norman, Application of

• Decision Date: 26 August 1960
• Citation: 205 N.Y.S.2d 260,26 Misc.2d 700
• Parties: Application of 'Virginia NORMAN' for a Writ of Habeas Corpus to Bring up the Bodies of 'John McQueen', 'Mary McQueen' and 'Richard McQueen' infants, for the purpose of Awarding the Custody of said Infants.
• Court: New York Supreme Court

Page 260

205 N.Y.S.2d 260

26 Misc.2d 700

Application of 'Virginia NORMAN' for a Writ of Habeas Corpus

to Bring up the Bodies of 'John McQueen', 'Mary McQueen' and

'Richard McQueen' infants, for the purpose of Awarding the

Custody of said Infants.

Supreme Court, Special Term, Nassau County, Part I.

Aug. 26, 1960.

LeRoy G. Edwards, Mineola, for petitioner.

Robert M. Callahan, Farmingdale, for respondent.

BERNARD S. MEYER, Justice.

This petition for a writ of habeas corpus was met by a motion to dismiss for insufficiency which, however, the court deems waived by respondent's proceeding to trial on the matter.The motion to dismiss for insufficiency is, therefore, denied, but the petition is dismissed on the merits.

Petitioner is the mother and respondentthe father of three children, all born during the period petitioner and respondent were living together as husband and wife, though, because of petitioner's prior undissolved marriage, they never married.The children are now 12, 10 and 7.Petitioner also had three children by her first marriage, who are now 26, 20 and 17, who also resided with petitioner and respondent while they were living together.The youngest of petitioner's children by her first marriage continued to live with respondent even after petitioner left him and, except for brief periods, remained with him until April 1960, when she moved to a separate abode, apart from both petitioner and respondent.

In October 1957, petitioner, while still living with respondent, had her picture and name published in a magazine as a person interested in male companionship and thus became acquainted with her present husband.In February 1958, she left respondent's home in Nassau and went to live upstate with her present husband but did not marry him until February 1959.Whether in the meantime her first husband died or the marriage was dissolved does not appear, but petitioner testified she considers herself legally married to her present husband.

From the time she left in February 1958 until one of the three children involved in this proceeding became ill, during the early part of 1959, petitioner visited the three children but four times, each time for one day only.While the child was ill she visited more frequently, some of the time staying at respondent's home.In April 1960she and her present husband picked up two of the children at the school bus stop and attempted to take the third, who, however, refused to go.The two children remained upstate with petitioner and her present husband during the Easter vacation, but were taken back by respondent at the end of that week.

During the period after petitioner left the Nassau abode, respondent worked nights so that he could be with the children during the daytime.He has resided with the children since their respective births.His sister, who is 25 years of age, also assists him with the children, living with them in the home.Respondent is Catholic; the two older children have received communion, the youngest is scheduled to begin instruction in September 1960.Petitioner's present husband is Baptist but testified that he is willing that the children be raised as Catholics, and that he is anxious to have the children in his home.

The above facts were either testified to or admitted by failure to deny.At the suggestion of the partiesthe court also obtained a report from the Probation Department relative to the three adults, copy of which has been made available to both parties, and talked with the children out of the presence of the parties, but with a court stenographer present to record the conversation.All three of the children expressed a wish to remain with respondent and not to be sent upstate with petitioner and her new husband.The Court concludes that, though the similarity of their answers suggests that they had discussed the matter with an adult, presumably respondent, nonetheless they have a strong feeling for respondent and a very real apprehension about being sent to live with petitioner and her present husband in a new and strange community.

Petitioner relies heavily on the provision of Domestic Relations Law, § 138 that in records other than birth certificates or judicial proceedings in which birth out of wedlock is at issue 'it shall be sufficient for all purposes to refer to the mother as the parent having the sole custody of the child, and no explicit reference shall be made to illegitimacy.'The last few words reveal the purpose of the section: to remove the stigma of illegitimacy from the child.The section cannot, however, be construed as a legislative declaration that only the mother can, whatever the circumstances, have custody of a child born out of wedlock.The Appellate Division, Second Department, clearly declared otherwise in People ex rel. Meredith v. Meredith, 272 App.Div. 79, 69 N.Y.S.2d 462, and the Court of Appeals affirmed, 297 N.Y. 692, 77 N.E.2d 8.The core of the decision is contained in the following passage (272 App.Div. at page 82, 69 N.Y.S.2d at page 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 Comm.[14th ed.], 317;Matter of Doyle, 1 ClarkeCh. 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...