Norman, Application of

Decision Date26 August 1960
Citation205 N.Y.S.2d 260,26 Misc.2d 700
PartiesApplication 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.
CourtNew York Supreme Court

LeRoy G. Edwards, Mineola, for petitioner.

Robert M. Callahan, Farmingdale, for respondent.


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 respondent the 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 1960 she 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 parties the 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 Clarke Ch. 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...

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9 cases
  • T., In re
    • United States
    • Court of Appeal of Michigan — District of US
    • 7 November 1967
    ... ... The agency did not communicate with Mr. S during the four months' period of its consideration and investigation of Miss M's application. On August 2, 1966, without intimation to Mr. S of what was about to occur, Miss M released Mark to the agency for adoption. The release was signed ... Kennedy v. Button, supra; Garrett v. Mahaley (1917), 199 Ala. 606, 75 So. 10; Matter of Norman (1960), 26 Misc.2d 700, 205 N.Y.S.2d 260; People ex rel. Lewisohn v. Spear, supra; where the mother prevailed against third parties, In re Mrs. M ... ...
  • Daghir v. Daghir
    • United States
    • New York Court of Appeals Court of Appeals
    • 17 June 1982
    ... ...         The majority memorandum makes no reference to the proceeding underlying the Appellate Division order. It was an application by defendant father, made to the Supreme Court which had granted plaintiff wife a divorce by reason of the cruel and inhuman treatment of her by ... Lang, 9 A.D.2d 401, 409, 193 N.Y.S.2d 763, affd. 7 N.Y.2d 1029, 200 N.Y.S.2d 71, 166 N.E.2d 861; Matter of Norman, 26 Misc.2d 700, 704, 205 N.Y.S.2d 260; Domestic Relations Law, § 75-b, subd. 1, par. ) ...         A related but separate reason why we ... ...
  • State in Interest of M., In re, 11607
    • United States
    • Utah Supreme Court
    • 9 November 1970
    ... ... Superior Court In And For County of Pima, 100 Ariz. 167, 412 P.2d 463 (1966); Wade v. State, 39 Wash.2d 744, 238 P.2d 914 (1951); Application of 'Norman,' 26 Misc.2d 700, 205 N.Y.S.2d 260 (1960); and 50 Minn.L.Rev. 1071, Father of an Illegitimate Child--His Right To Be Heard ... 14 42 ... ...
  • Cornell v. Hartley
    • United States
    • New York Family Court
    • 19 September 1967
    ... ... 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 ... ...
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