In re Wheeler

Order unanimously reversed, without costs of this appeal to either party, and custody of infant awarded to appellants. Memorandum: This infant, born on August 24, 1963, was orphaned on April 13, 1964 when his parents were killed in a boating accident. He has since resided with appellants, Ms paternal grandparents. Family Court has awarded custody of the child to respondent, who is a sister of the infant’s maternal grandmother, after making a finding that the child “ would fare equally well in either household.” We conclude that such action was an improvident exercise of discretion. Both the paternal and maternal grandparents live within reasonable distance of each other in Wayne County. Respondent, Mrs. Case, and her husband live some 80 miles distant in Tioga County. There is no proof of any close association between Mrs. Case and her grandniece, the mother of the infant, during the lifetime of the latter. The deceased parents, on the other hand, were living with appellants at the time of their death. Both appellants are in their early 50s and have a 12-year-q!4 daughter, The ages of these grandparents are not necessarily decisive of the issue. A sensible determination appears to be to award custody of the infant to appellants and grant to the maternal grandparents the right to visit the infant at suitable times and places. If these individuals are unable to agree as to the details of such visitation rights, they shall be delineated by appropriate order of the Wayne County Family Court. (Appeal from order of Wayne Family Court granting custodj^ of child.) Present — Williams, P. J., Bastow, Henry, Del Vecchio and Marsh, JJ.