Wout v. Wout

Decision Date21 May 1969
Citation32 A.D.2d 709,300 N.Y.S.2d 24
PartiesIn the Matter of Elizabeth WOUT, Petitioner, v. Cornelius S. WOUT, Respondent.
CourtNew York Supreme Court — Appellate Division

Ward W. Ingalsbe, Jr., Kingston, for respondent.

Before HERLIHY, J.P., and REYNOLDS, AULISI, COOKE and GREENBLOTT, JJ.

AULISI, Justice.

Appeal from a judgment of the Family Court, Ulster County, entered May 2, 1968, which denied a writ of habeas corpus.

Petitioner and respondent are husband and wife and both are Dutch nationals. They were married in the United States in 1958 and a son was born of the marriage in 1962. Marital discord evidenced itself shortly after the marriage and in 1965 petitioner took her infant son to Holland. Respondent made several trips to Holland in an attempt to get his wife to return to their home in Ulster County with their son. Various legal actions were apparently started in the Dutch courts during which custody of the son was granted to the father. Respondent returned to the United States with the boy and petitioner thereafter followed. Strife continued between the parents, respondent keeping custody with petitioner being allowed very limited opportunities to see her son. At one time petitioner took her son away to Michigan against the knowledge or consent of respondent and she again returned to Holland for a period of time. Since 1966 the boy has continued to live with his father in a new home built by respondent for the family. He is cared for by his father and now attends school. After school he stays with a neighbor's family until his father returns from his employment which he has had for ten years as a waiter-manager of a local restaurant. Petitioner resides in an apartment and has been employed for approximately one and one half years at another restaurant. She has the boy with her each weekend. After several hearings, psychiatric examinations and probation investigation, custody was awarded to respondent with liberal visitation privileges granted to petitioner.

Petitioner contends that the record does not support the determination because there are no overriding considerations present to deny the general principle of the propriety of committing a child of tender years to its mother (Ullman v. Ullman, 151 App.Div. 419, 424, 135 N.Y.S. 1080, 1083; People ex rel. Pritchett v. Pritchett, 1 A.D.2d 1009, 151 N.Y.S.2d 481, affd. 2 N.Y.2d 947, 162 N.Y.S.2d 354, 142 N.E.2d 421). However, there is no prima facie right to custody in either parent and the ultimate consideration in a case of this type is the welfare of the child (Domestic Relations Law § 70; Lockwood v. Jagiello, 24 A.D.2d 544, 261 N.Y.S.2d 420). The child has lived with his father for three years, is now seven years old and attends school. There is no contention that his care has been in any way deficient under the circumstances except for the denial of maternal companionship and care. In contrast, petitioner's conduct prior to the recent past raises serious questions as to her concern for the family welfare (see Sheil v. Sheil, 29 A.D.2d 950, 289 N.Y.S.2d 86). Based upon all the facts and circumstances in the present record we find no grounds upon which we should interfere with the determination of the Family Court.

Generally custody should be established...

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21 cases
  • Gloria S. v. Richard B.
    • United States
    • New York Supreme Court Appellate Division
    • 6 Abril 1981
    ...(Matter of Lang v. Lang, 9 A.D.2d 401, 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 Wout v. Wout, 32 A.D.2d 709, 300 N.Y.S.2d 24.)" (Dintruff v. McGreevy, 34 N.Y.2d 887, 888, 359 N.Y.S.2d 281, 316 N.E.2d 716; see, also, The Family and the Law (ed. by Gol......
  • Salk v. Salk
    • United States
    • United States State Supreme Court (New York)
    • 28 Octubre 1975
    ...and case law, neither parent has a Prima facie right to custody of a child (Domestic Relations Law §§ 70, 240); Wout v. Wout, 32 A.D.2d 709, 300 N.Y.S.2d 24 (1969); Sheil v. Sheil, 29 A.D.2d 950, 289 N.Y.S.2d 86 (1968). The issue is one of Comparative fitness, with the paramount and control......
  • Pact v. Pact
    • United States
    • New York Family Court
    • 13 Marzo 1972
    ...of the child's welfare dictates that a continual shifting back and forth of custody should be avoided whenever possible (Wout v. Wout, 32 A.D.2d 709, 300 N.Y.S.2d 24; Matter of Lang v. Lang, 9 A.D.2d 401, 193 N.Y.S.2d 763, aff'd. 7 N.Y.2d 1029, 200 N.Y.S.2d 71, 166 N.E.2d Yet we cannot deny......
  • Obey v. Degling
    • United States
    • New York Court of Appeals
    • 8 Julio 1975
    ...Lang v. 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; see, also, Matter of Wout v. Wout, 32 A.D.2d 709, 300 N.Y.S.2d 24). 'The rearing of a child requires greater stability than a roller-coaster treatment of custody' (Dintruff v. McGreevy, ......
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