People ex rel. Francois v. Ivanova

• Decision Date: 14 November 1961
• Citation: 221 N.Y.S.2d 75,14 A.D.2d 317
• Parties: PEOPLE of the State of New York ex rel. Jean FRANCOIS, Petitioner-Respondent, for a Writ of Habeas Corpus, v. Olga IVANOVA, Respondent-Appellant. *
• Court: New York Supreme Court — Appellate Division

Page 75

221 N.Y.S.2d 75

14 A.D.2d 317

PEOPLE of the State of New York ex rel. Jean FRANCOIS, Petitioner-Respondent, for a Writ of Habeas Corpus, v. Olga IVANOVA, Respondent-Appellant. ^*

Supreme Court, Appellate Division, First Department.

Nov. 14, 1961.

Samuel Sweetbaum, New York City, for petitioner-respondent (Marshall Sweetbaum, New York City, of counsel).

de Bransbourgh & Merritt, New York City, for respondent-appellant (William Merritt, New York City, of counsel).

Before BOTEIN, P. J., and BREITEL, RABIN, VALENTE and McNALLY, JJ.

PER CURIAM.

Order, entered on April 17, 1961, to the extent it grants visitation rights to the petitioner, affirmed. The child was born out of wedlock. Petitioner is the father and respondent the mother. Subsequent to the birth of the infant the petitioner obtained a divorce decree from his wife. The parties did not marry, each party blaming the other for refusing to so do. It appears, however, that the parties and the infant lived together as a family unit for upwards of six years prior to the commencement of this proceeding. The parties and their attorneys were heard at length below. Neither party offered or requested the opportunity to present evidence. The court declared its intention to award custody to the mother and visitation rights to the father. Thereafter appellant's counsel excepted but did not request any opportunity to offer evidence. While technical omissions of such nature will not be permitted to defeat the best interests of the child, nevertheless the record adequately supports the determination appealed from. On this appeal the respondent-appellant contends the petitioner has no legal rights in respect of visitation because the child is illegitimate. The best interests of the infant is the guiding principle in the determination of custody and the right of visitation. (Finlay v. Finlay, 240 N.Y. 429, 433, 434, 148 N.E. 624, 626, 40 A.L.R. 937; Matter of Bock (Breitung), 280 N.Y. 349, 353, 21 N.E.2d 186, 187.) The father of an illegitimate child may be awarded custody (Meredith People ex rel. v. Meredith, 272 App.Div. 79, 69 N.Y.S.2d 462, affd. 297 N.Y. 692, 77 N.E.2d 8); and, a fortiori, the right of visitation. Most significant, if ever we must respect the opportunity afforded the trial judge to evaluate the character of the persons confronting him, it is in a proceeding of this nature, where the judge saw and held extensive conversations with the parties, and enjoyed a unique position to form an estimate of their qualities. The printed record in this proceeding is not a satisfactory substitute for such firsthand observation. No other question is presented on this record and no other point is made by the appellant. In a proceeding of this nature we are not called upon to adjudicate controversies between parents. (Finlay v. Finlay, supra, 240 N.Y. p. 434, 148 N.E. p. 626.)

Order, entered on April 17, 1961, to the extent it grants visitation rights to the petitioner, affirmed.

All concur except BREITEL, J. who dissents in dissenting opinion.

BREITEL, Justice (dissenting).

So far as research can establish this is the first case in this State in which visitation rights have been granted to the father of an illegitimate child in the absence of unfitness, misconduct or disability in the mother, and over her objection, and but one of a handful of cases in the Anglo-American jurisdictions involving such visitation rights under any circumstances. Needless to say the problem posed is not solved, nor the devil exorcised, by incantations of partially developed syllogisms. Nor does the case raise any question of a need for additional evidence; none has made that suggestion. Indeed, the record made is very clear, and one thing it does not show is any similitude of a stable family relationship, licit or illicit. On the contrary, the record undisputedly shows a tawdry quarreling relationship between traveling entertainers over three continents. Sometimes (after the man left his wife and child) they lived with his mother, and sometimes with her parents, and sometimes in their own quarters.

Nor does this case bear any resemblance to the problem in the matrimonial dispute where the viewing and interviewing of the litigants may be crucial to solution of questions of divided custody and visitation--every child to begin with being entitled to the care and affection of both parents in a single home. Indeed, the issue is as simple and as troublesome as first stated[14 A.D.2d 319] --and the 'qualities' of the persons are barely in issue, for just the reason that the disputes between the adults are either irrelevant, or only of secondary significance--and the last only because the child may be affected by the disputes.

The father, then a married man living with his wife and child in North Africa, established an extra-marital relationship with the mother, a refugee from Central Europe. Both were professional singers in Casablanca. He proposed to obtain a divorce and, according to the mother, eventually marry her. This was in 1952. That same year they both moved to France where for a period they lived together, and the child was born. The facts of their relationship in France, and elsewhere, are much disputed and charges of misconduct with other persons of the opposite sex are liberally exchanged between them. The child, a boy, is now almost nine years of age.

In April, 1958 the mother and her son settled in this city. In June of that year the father came here and for a short period lived with the mother and child. Later they separated again, but the father continued to visit with the child until January, 1961 when the mother refused him any further visits. In the meantime the father paid the child's tuition at a private school at the rate of $72 per month but contributed nothing beyond that, nor did he contribute any support for the child during the summers. The mother is employed.

The father obtained a divorce from his wife in 1953. Hence, both the father and mother are now free to marry, but each declines to marry the other. He says he no longer supports his former wife or their child because the wife declines to receive such support, and evidently, like the mother in this case, wants no part of him.

On the hearing at Special Term, only a brief portion of which was recorded, the father admitted to earning $65 per week but stated that he was unable to make any contribution for the child's support during the summer because he needs his earnings for his own necessities. Eventually, after being pushed, he expressed a willingness to provide support at the rate of about $30 per month during the summer.

In this State it has been definitively stated with respect to illegitimate children, following the ancient rule, that in the absence of unfitness or inability in the mother she is entitled to the exclusive custody of the child (People ex rel. Meredith v. Meredith, 272 App.Div. 79, 69 N.Y.S.2d 462, affd. 297 N.Y. 692, 77 N.E.2d 8). In the Meredith case the reasons, in law and in morals, for the scope of this principle were elaborately detailed. At the same time recognition was given to the primary principle that it is the interest of the child which is always to be served and that the courts are not concerned, except secondarily, with the rights, as such, of the father or the mother.

Thus it was said:

'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; 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 on New York Pleading and Practice, § 45, p. 69, and cases cited.)

* * *

* * *

'As previously indicated, implicit in the determination of the learned court is a finding that the mother is not a proper and suitable person to have the custody of this three-year old girl.' (272 App.Div. 82-83, 69 N.Y.S.2d 465)

There is not much dispute about the principles (16 N.Y.Jur.Dom.Rel. § 476 to the same effect; cf. Matter of Anonymous, 12 Misc.2d 211, 172 N.Y.S.2d 186, containing a complete discussion but where the illicit household had existed in stable family unity for a long period and it was the mother who walked out to live with another). As happens so often, the occasion for and mode of application of the principles creates disputes.

In effect, the principles are no different from those which govern the custody of children born in wedlock; but special attention is...