People ex rel. Knopp v. Shepsky, 305 N. Y. 465, 113 N. E. 2d 801 (1953)

Ertell, Dewey, Jr.

Manuele, Robert

English

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Buffalo Law Review Volume 3 Number 1 Article 42 12-1-1953 Domestic Relations—Parent-Child—Custody: Parent-Stranger Robert Manuele Dewey Ertell Jr. Follow this and additional works at: https://digitalcommons.law.buffalo.edu/buffalolawreview  Part of the Family Law Commons Recommended Citation Robert Manuele & Dewey Ertell Jr., Domestic Relations—Parent-Child—Custody: Parent-Stranger, 3 Buff. L. Rev. 114 (1953). Available at: https://digitalcommons.law.buffalo.edu/buffalolawreview/vol3/iss1/42 This The Court of Appeals Term is brought to you for free and open access by the Law Journals at Digital Commons @ University at Buffalo School of Law. It has been accepted for inclusion in Buffalo Law Review by an authorized editor of Digital Commons @ University at Buffalo School of Law. For more information, please contact lawscholar@buffalo.edu. BUFFALO LAW REVIEWVIII. DovFsnc RLATIoNsA. Parent-ChildCustody: Parent-StrangerThe New York Court of Appeals was again faced with a prob-lem of the rights of a parent to her child in opposition to a non-parent in Peopel ex reL Knopp v. Shepsk-y.1 The petitioner, themother of an illegitimate child, signed a consent to have her childplaced with a lawyer for adoption. According to the testimony oftwo witn.sses, the mother contended that she had only placed thechild to be boarded out and that she was not placing the child foradoption. Two weeks after the child had been placed, she re-quested the return of her child. The child was not returned andshe sued out a habeas corpus. The court gave the child back tothe parent.The custody of a child is usually a question for the SupremeCourt, Special Term and the Appellate Division,2 and rarely doesit present a question of law for the Court of Appeals.3 The in-stant case provides a question of law, i. e., the right of a court totransfer a child, except for the gravest reasons, from the natural-parents to a stranger. Usually the court will look to the bestinterests of the child in determining to whom custody should begiven.4  However, this has no place in consideration when thecontest is between the parent and a nonparent. The claim of theparent is superior to that of all others in regard to the care andcustody of the child.' Of course a child will not be given to aparent when that parent is unfit to care for him.6 The mere fact-ual determination as to who can provide the best surroundingsfor the child is not sufficient to grant custody to a stranger. 7 Thisis even true where the parent has initially given her consent tothe custody of the child.8 The burden of proof of the unfitness ofthe parent rests upon the nonparent. 9 Although the parent can1. 305 N. Y. 465, 113 N. E. 2d 801 (1953).2. Bunim v. Bunim, 298 N. Y. 391, 83 N F. 2d 848 (1949).3. People ex rel. Portnoy v. Strasser, 303 N. Y. 539, 104 N. E. 2d 895 (1952).4. People ex rel. Pr.vne v. W alts, 122 N. Y. 238, 25 N. E. 266 (1890).5. People ex rel. Beaudoin v. Beaudoin, 126 App. Div. 505, 110 N. Y. Supp. 592(3rd Dep't) aff'd 193 N. Y. 611, 86 N. E. 1129 (1908).6. Matter of Benning, 303 N. Y. 775, 103 N. E. 2d 375 (1952); see also Matterof Gustow, 220 N. Y. 373, 115 N. E. 995 (1917), Where the parent was "a drunkard,an incompetent, a notoriously immoral person, cruel or unkind towards his child" mayhave the child taken from him.7. See note 5 mpra; the grandparents were able to better provide for the childthan the mother, but the court held that there was no reason to take the child from themother.8. Matter of Bitany, 239 N. Y. 19, 145 N. E. 70 (1925).9. Matter of Back, 280 N. Y. 349, 21 N. E. 2d 186 (1939).114THE COURT OF APPEALS, 1952-53 TERMstill claim the child even after legal adoption has been granted, 0the burden then rests upon the parent to show that the child's wel-fare will be advanced by having the child returned to her."In the instant case there was no showing that the mother wasunfit to care for her child. In fact, to the contrary there had beenevidence introduced on the trial to show her fitness. Since theorder of adoption of the child had already been vacated in a pre-vious proceeding because of the lack of consent of the mother,it was natural that the court gave the custody of the child to themother.Abrogation of AdoptionIn New York, to effectuate an abrogation of an adoption theremust be a finding that "due regard to the interests of both (thechild and the foster parents) requires that such adoption be abro-gated. 112 In order for a parent to obtain the abrogation, he mustshow that the child has been guilty of the willful desertion or amisdemeanor or ill behavior. The law goes on to state that whensuch an abrogation is sought, notice must be given to the agencywhich was a party to the adoption, or if no agency was involved,to the board or commission or official with the jurisdiction overthe poor. If no such agency or institution shall appear on thereturn of such process, then a special guardian shall be appointedby the court.'3In In re Adoption of Eaton,4 the parents of an adopted per-son, their daughter, were seeking the abrogation of adoption onthe ground of desertion. The daughter had attained majority,had married, left home and had not been heard of since. In theaction she appeared by counsel. The court held that once theadopted person had attained majority, no longer could there pos-sibly be an abrogation of the adoption.' 5 The court looked intothe provisions of § 118 of the Domestic Relations Law to interpretthe intent of the statute and found that it applied only to minorchildren. First of all, the violations upon which the abrogationcan be sought pertain only to infractioias of those duties which areowed by a child to a parent during infancy. Further, the agencywhich was a party to the adoption must be present to insure that10. People ex rel. Pickle v. Pickle, 215 App. Div: 32, 213 N. Y. Supp. 70 (4thDep't 1925).11. Matter of Thorne, 240 N. Y. 444, 148 N. E. 630 (1925).12. Dot. REL. LAW § 118.13. Ibid.14. 305 N. Y. 162, 111 N. E. 2d 431 (1953).15. The court did not express itself or determine the abrogation of an adoptionprocured by fraud or any other infirmity in connection with the adoption itself. SeeMyer's v. Myers, 197 App. Div. 1, 188 N. Y. Supp. 527 (1st Dep't 1921).

Domestic Relations—Parent-Child—Custody: Parent-Stranger

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Domestic Relations—Parent-Child—Custody: Parent-Stranger

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