People ex rel. Levine v. Rado

• Decision Date: 11 July 1967
• Parties: PEOPLE of the State of New York ex rel. Angie LEVINE, formerly known as Angie Fossa, Petitioner, v. Mary RADO and Anthony Rado, Respondents.
• Court: New York Supreme Court

Page 483

283 N.Y.S.2d 483

54 Misc.2d 843

PEOPLE of the State of New York ex rel. Angie LEVINE, formerly known as Angie Fossa, Petitioner, v. Mary RADO and Anthony Rado, Respondents.

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

July 11, 1967.

D'Auria, Bond, Corin & DeVito, Jericho, for petitioner.

Edward F. Leddy, New York City, for respondents.

MEMORANDUM

WILLIAM R. BRENNAN, Jr., Justice.

By this writ of habeas corpus, the petitioner, as maternal grandmother of the infant Joseph Rado, formerly known as Joseph Triga, Jr., seeks to obtain visitation privileges with the infant.

Joseph Triga, Jr., was born in 1957 and resided with the petitioner, his maternal grandmother, from 1957 until 1962. The infant's father is in prison, and his mother, who was addicted to drugs, died in 1960.

In 1963 a dispute arose between the petitioner, as maternal grandmother, and Mrs. Triga, the paternal grandmother, concerning custody of the child. The Supreme Court, Bronx County, acting in its role as parens patriae of the infant, gave custody of the child to his paternal aunt, Mary Rado, and granted both the maternal and paternal grandparents limited visitation rights. From March 28, 1963, the date of the order, up to the present time the child has lived with his paternal aunt, Mary Rado, and her husband, Anthony Rado. Mr. and Mrs. Rado commenced an adoption proceeding in the Family Court of Nassau County and, by order of that court dated November 23, 1966, they became the adoptive parents of the infant. The questions presented are (1) whether or not the order of adoption superseded the prior order of the Supreme Court setting forth visitation rights to the maternal grandmother, and (2) whether Section 72 of the Domestic Relations Law entitles petitioner as maternal grandmother to rights of visitation.

With respect to the first question, we hold that the order of adoption is controlling and that its effect is to supersede the prior order of the Supreme Court, Bronx County. The Supreme Court order appears to have been the culmination of a proceeding initiated by either writ of habeas corpus or order to show cause for the sole purpose of establishing custodial and visitation rights. In such a proceeding the Supreme Court acts as parens patriae of the infant and, motivated exclusively by what is in the best interests of the child, makes a decision which is at best temporary in nature and always subject to review or modification. At the time when that proceeding was argued, it must be remembered that the natural mother had died and that the natural father was incarcerated. It could not seriously be argued that the determination of custody would, for example, be of such a permanent nature as to preclude the natural father upon release from jail from seeking to obtain custody of his natural born son. The order granting custody to Mary Rado and visitation rights to the petitioner would stand until modified by a subsequent order of the Supreme Court or until another court of competent jurisdiction would make a permanent change in status.

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