People ex rel. Bishop v. Bishop , 312 N.Y.S.2d 87 ( 1970 )

In a habeas corpus proceeding for custody of the parties’ infant child, the appeal is from two orders of the Family Court, Kings County, dated June 17, 1968 and April 18, 1969, respectively, both of which awarded custody to petitioner, for one year in the first order and without limitation in the second order. Appeal from the order dated June 17, 1968 dismissed, without costs. That order was superseded by the order dated April 18, 1969. In any event, said appeal is rendered moot in view of our disposition herein of the appeal from the April 18, 1969 order. Order dated April 18, 1969 reversed, on the law and the facts, without costs, petition dismissed, and custody of the child awarded to appellant. In our opinion, petitioner’s conduct over a prolonged period in which she openly lived with a married man known to her to be an ex-convict and a suspected drug addict, and mothered his child, conclusively established her unfitness to care for the infant whose custody is here at issue. Apart from her unfitness, the record shows she has no facilities whatever to care for the child, while appellant has remarried, has a steady job, and apparently can provide the home atmosphere this infant sorely needs. Under the circumstances, we view the award of custody to petitioner as an abuse of discretion (see Harrington v. Harrington, 290 N. Y. 126, 131). Christ, P. J., Hopkins, Munder and Latham, JJ., concur; Benjamin, J., concurs in the dismissal of the appeal from the order dated June 17, 1968, but otherwise dissents and votes to affirm the order dated April 18, 1969.