Opinion
April 28, 1952.
In a habeas corpus proceeding the two petitioners, being the father and the paternal grandmother, seek custody of the two infant children of said father and the respondent, who is the mother. The Special Term made an order dismissing the writ but awarding custody of the children to both maternal grandparents and granting the right of visitation to the petitioners. Petitioners appeal. Order modified on the law and the facts by striking out the three ordering paragraphs of said order and by substituting therefor provisions that the writ is sustained to the extent of awarding custody of the children to their father, petitioner Noel Cuisinier; granting to the mother, respondent Vera Cuisinier, the right of visitation with the children every Sunday between the hours of one and six o'clock in the afternoon, on condition that said respondent's mother, Catherine Hall, be present and participate fully during each period of visitation; and in all other respects the writ is dismissed. As thus modified, the order is unanimously affirmed, without costs. Upon the proof adduced in this proceeding the learned Justice at Special Term was amply justified in concluding that the best interests of the children required that their custody be with a person other than their mother. The proof was devoid, however, of any showing that the father is in any way disqualified or incapable properly to take care of them. Consequently, he has a paramount right to their custody as against the maternal grandparents. ( Matter of Scattergood, 265 App. Div. 948; People ex rel. Boulware v. Martens, 232 App. Div. 258, affd. 258 N.Y. 534; People ex rel. Hausler v. Stegmeier, 240 App. Div. 901, affd. 264 N.Y. 483; Matter of Livingston, 151 App. Div. 1, 7.) A fortiori, is he entitled to their custody because in any event it would be for the best interests of the children, particularly since the vesting of custodial rights in the maternal grandparents would be, under the circumstances disclosed here, tantamount to continuing custody in the mother herself. Nolan, P.J., Carswell, Johnston, Wenzel and MacCrate, JJ., concur.