State ex rel. Herman v. Lebovits
| Decision Date | 16 June 1971 |
| Citation | 322 N.Y.S.2d 123,66 Misc.2d 830 |
| Parties | The STATE of New York, ex rel. Alexander HERMAN on behalf of Michael Lebovits, Petitioner, v. Benno LEBOVITS, Bernard Lebovits and Isabelle Lebovits, Respondents. |
| Court | New York Supreme Court |
Hyman B. Schutzer, New York City, for petitioner.
Mathilda Miller Cuneo, New York City, for respondents.
Respondents move to re-argue their prior motion to vacate the judgment, entered November 13, 1969, awarding petitioner visitation privileges with the child Michael Lebovits.
Petitioner is the maternal grandfather of the child, now aged two. The respondents are the child's father and his paternal grandparents.
After the death of the child's natural mother (petitioner's daughter), the petitioner commenced a habeas corpus proceeding in this Court for custody of the child. On the return date, the writ was marked withdrawn by consent on condition the petitioner and the child's maternal grandmother be permitted bi-monthly visitation with the child at the respondent's residence in Baltimore, Maryland. A judgment to that effect was entered November 13, 1969.
The validity of that judgment is challenged on jurisdictional grounds and on the ground the subsequent order of adoption by respondent-father's present wife superseded the judgment and extinguished petitioner's rights thereunder.
With respect to the jurisdictional issue raised, the Court adheres to its prior ruling upholding jurisdiction. The Court's power to grant visitation privileges to a grandparent is ordinarily premised upon residence of the child within the state (Schiller v. Elliot, 31 A.D.2d 612, 295 N.Y.S.2d 762, aff'd 25 N.Y.2d 949, 305 N.Y.S.2d 158, 252 N.E.2d 635). The infant Michael Lebovits resides with his father in Maryland. However, the respondent-father voluntarily submitted himself to the jurisdiction of this Court and consented to the entry of judgment granting visitation privileges to petitioner. Having done so, he waived objection to the jurisdiction of the Court, and he may not collaterally attack the judgment.
However, the judgment, though valid when entered, did not vest the petitioner with permanent rights to visitation with the child. Provisions in a judgment regarding visitation are 'at best temporary in nature and always subject to review or modification' based upon a significant change of circumstances (People ex rel. Levine v. Rado, 54 Misc.2d 843, 844, 283 N.Y.S.2d 483, 485).
Subsequent to the entry of judgment herein, the respondent-father remarried and his new wife adopted the child. Adoption of the child unquestionably effectuated a permanent change in the child's status (Domestic Relations Law, §§ 114, 117; Betz v. Horr, 276 N.Y. 83, 11 N.E.2d 548; Matter of Charles v. James, 56 Misc.2d 1056, 290 N.Y.S.2d 993; People ex rel. Levine v. Rado, supra). As of the date of the order of adoption, the adoptive mother became, in the fullest legal sense, the mother of the child, having all the rights and obligations of a natural parent (Ibid). In the language of the statute.
'The adoptive parents or parent and the adoptive child shall sustain toward each other the legal relation of parent and child and shall have all the rights and be subject to all the duties of that relation * * *' (Domestic Relations Law, § 117).
The legal effect of the foregoing statute, as succinctly stated by the Court of Appeals, is
'* * * to make the adopted child the natural child of the adoptive parent (Carpenter v. Buffalo General Electric Co., 213 N.Y. 101, 108, 106 N.E. 1026), to give the 'adopted child the same legal relation to the foster parent as a child of his body' (Matter of Cook's Estate, 187 N.Y. 253, 260, 79 N.E. 991, 993), and * * * the adoption divests the natural parents of the relation which they had heretofore sustained toward the infant' (Betz v. Horr, supra, 276 N.Y. 83, 87--88, 11 N.E.2d 548, 550).
Upon adoption, the infant Michael Lebovits was completely assimilated into a new family unit, which the petitioner herein is not part of. The legal relationship formerly existing between petitioner and the child was terminated by the order of adoption, and the petitioner has no legal right to insist upon continued visitation with the child against the wishes of the child's adoptive mother and natural father. It would be against the public policy of this state to hold otherwise.
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