Opinion
June 14, 1971
In a habeas corpus proceeding to obtain custody of a child, the appeal is from an order of the Family Court, Kings County, dated November 19, 1970, which dismissed the writ and awarded custody of the child to respondents. Order reversed, on the law and the facts, without costs, writ sustained and custody of the child awarded to petitioner Patricia Louisa. On this record it is, to say the least, doubtful that the surrender by petitioner Patricia Louisa of her baby and her consent to the child's adoption were truly voluntary. If it be assumed that they were, the consent was effectively revoked by a request for the return of the baby less than 30 days after it was surrendered and the consent was signed. And in this contest between the natural parent (petitioner) and nonparents (respondents) we further find on this record that respondents did not sustain their burden of proving that petitioner abandoned the baby or is "unfit to assume the duties and privileges of parenthood", within the guidelines of People ex rel. Kropp v. Shepsky ( 305 N.Y. 465, 468) and People ex rel. Scarpetta v. Spence-Chapin Adoption Serv. ( 28 N.Y.2d 185). (See, also, Matter of Anonymous, 60 Misc.2d 854; cf. People ex rel. Anonymous v. Anonymous, 10 N.Y.2d 332.) Hence petitioner's writ should have been sustained and custody of the baby awarded to her. Rabin, P.J., Hopkins, Christ, Brennan and Benjamin, JJ., concur.