Opinion
May 18, 1971
Appeal from an order of Family Court, Sullivan County, entered March 27, 1970, which granted custody of an illegitimate child to respondent, the father, and accorded visitation rights to appellant, the mother. The record supports the finding of Family Court that neither appellant nor respondent was unfit to care for this three-year-old boy and that each had affection for the child and interest in his welfare. On the basis of that finding and section 70 Dom. Rel. of the Domestic Relations Law, which directs that there shall be no prima facie right to the custody of the child to either parent, the Family Court determined that the best interest of the child would be promoted by awarding custody to the father. Its decision was primarily grounded on two considerations, first, that the child would then be in a home environment in which both a father and "mother" were present (respondent was living with another woman), and second, since there were no other children in the father's home, the respondent would be better able to care for the child than the natural mother, who is on welfare and attempting to raise other young children. Under established law, the mother of an illegitimate child is prima facie entitled to its custody if she is a proper and suitable person, even as opposed to the child's father. ( People ex rel. Meredith v. Meredith, 272 App. Div. 79, affd. 297 N.Y. 692; Matter of Norcia v. Richard, 32 A.D.2d 656, affd. sub. nom. Matter of Anonymous v. Anonymous, 26 N.Y.2d 740.) This is particularly so with respect to children of tender years, whose needs are generally considered better cared for by the mother. ( Sheil v. Sheil, 29 A.D.2d 950.) While the primary responsibility of the courts is to look to the child's welfare and interests when the question of custody is raised, section 70 Dom. Rel. of the Domestic Relations Law has been interpreted as granting this preferential consideration to a fit mother of an illegitmate child. (Cf. Matter of Anonymous v. Anonymous, supra, dissent per SCILEPPI, J., pp. 745-746.) Considering the record as a whole, the factors which Family Court found decisive are not of such overriding concern as to warrant deviating from this rule. Since this child has lived most his young life with his father, visitation rights for the father should be considered and determined by the Family Court. ( People ex rel. "Francois" v. "Ivanova", 14 A.D.2d 317.) Order reversed, on the law and the facts, without costs, writ sustained to the extent of awarding custody to appellant, and matter remitted to the Family Court for consideration of the visitation rights of respondent. Herlihy, P.J., Reynolds, Staley, Jr., Sweeney and Simons, JJ., concur.