Opinion
May 20, 1971
Appeal from the Yates County Family Court.
Present — Del Vecchio, J.P., Witmer, Gabrielli and Cardamone, JJ.
Judgment unanimously reversed on the law and facts, without costs, and writ sustained. Memorandum: Petitioner-appellant is the father of Colleen Connors, aged 7, and Kevin Connors, aged 6. These two children have been living with the respondents, Frank and Anne Arnold, since the death of their mother in an automobile accident on October 29, 1968. Respondent Frank Arnold is the brother of the deceased mother of the children. Following a habeas corpus proceeding in the Family Court of Yates County, the trial court found that petitioner had abandoned these children and awarded custody to respondents. Plainly, the children's welfare is the primary concern in a contest for custody involving the parents alone. However, in a contest between parent and nonparents, as here, the natural parent has a right to the care and custody of a child superior to everyone else unless he has abandoned the right or proved unfit ( People ex rel. Scarpetta v. Spence-Chapin Adoption Serv., 28 N.Y.2d 185; Matter of Musso v. McAlpine, 36 A.D.2d 901). The trial court correctly concluded that there was insufficient proof to determine that the father is unfit. Thus the sole issue is whether the father's conduct constituted an abandonment of his children. The trial court's conclusion that there was an abandonment was error. The burden of proof of abandonment rests on the nonparent seeking custody from the natural parent ( People ex rel Kropp v. Shepsky, 305 N.Y. 465, 469). Such may be established by showing "a settled purpose to be rid of all parental obligations and to forego all parental rights * * * [manifesting] * * * not the slightest interest in the welfare of the child, his well-being or even his continued existence" ( Matter of Maxwell, 4 N.Y.2d 429, 433). The proof does not support such conclusions. From August, 1966 when petitioner's wife (the mother of these two children) left him to obtain a divorce in Nevada (she subsequently remarried), he attempted to locate her by placing phone calls to relatives and friends. Petitioner sent Christmas presents to the children at their old address hoping that they would be forwarded. From June, 1967 until May, 1968 he was ill and was hospitalized in Massachusetts. He testified that from the phone calls he made he was "continuously assured that they were in the best of health, being well taken care of and I felt that this were (sic) the case because I know that Sally's number one were her children." When petitioner learned of his former wife's death on October 29, 1968, he attended the funeral and asked that his children be returned to him. Later, when advised of respondents' intention to attempt to adopt the children, he contacted an attorney and commenced this habeas corpus proceeding after the lawyer's return from his summer vacation in 1969. This proof does not spell out a "settled purpose to be rid of all parental obligations and to forego all parental rights" ( Matter of Maxwell, supra, p. 433). Indeed, "our only index to the future is the recent past" ( People ex rel. Anonymous v. Anonymous, 10 N.Y.2d 332, 337) which clearly evidenced petitioner's active interest and concern for his children. The natural father is presently working as a bartender in a private country club. He lives with his elderly parents who would help him care for these children. The respondent, Frank Arnold, is a farmer and Superintendent of Highways of the Town of Middlesex and his wife, Anne, is a registered nurse. Nevertheless, this matter may not be resolved simply by determining which party affords the children better surroundings, or which party appears to be better equipped to raise them ( People ex rel. Portnoy v. Strasser, 303 N.Y. 539, 542). The status of a natural parent is so important that in determining the best interests of the child, it may counterbalance or even outweigh superior material advantages which may be afforded by adoptive parents ( People ex rel. Scarpetta v. Spence-Chapin Adoption Serv., supra). Particularly is this so inasmuch as "No court can, for any but the gravest reasons, transfer a child from its natural parent to any other person * * * since the right of a parent * * * to establish a home and bring up children is a fundamental one and beyond the reach of any court" ( People ex rel. Kropp v. Shepsky, supra, citing Meyer v. Nebraska, 262 U.S. 390, 399).