In re the Custody of Mond

Curtis, J.

The parents of Francis Du Mond were married June 18, 1939. The child was born December 2, 1940. The The parties separated in June, 1948. The cause of the separation may be described as “ ineompatability ”. The child has continued in the custody of the father and is maintained in his home with the aid of his father, grandparents and neighbors.

The father is attentive to the welfare of the child; but it is claimed that he is “ neglected ” because he is deprived of the care and affection of his mother. Truly the loss is grievous yet, if the custody were awarded to the mother, the training and affection of the father would be lost; and with equal persuasiveness it could be claimed that the child was then “ neglected ”. A series of proceedings might ensue following a circle, with detrimental results to the child’s welfare.

As related to this case a child is “ neglected ” when his custodian, by reason of cruelty, mental incapacity, immorality or depravity, is unfit properly to care for him, or neglects or refuses to provide necessary medical, surgical, institutional or hospital care for him, or he is in such condition of want or suffering, or is under such improper guardianship or control, as to endanger his morals or health (Matter of Walsh v. Walsh, 146 Misc. 604).

The court, therefore, finds that the child is not a ‘ ‘ neglected ’ ’ child, and that it has no jurisdiction to entertain the proceeding. In the absence of jurisdiction, the court can make no determination as to custody, although it would be for the best interests of the child to do so (Matter of Berman v. Berman, 169 Misc. 921). Moreover, although the mother undoubtedly has rights of visitation, the court is without power to enforce those rights (Matter of Joffe, 33 N. Y. S. 2d 481). The Supreme Court is the appropriate forum to determine the rights of the parties.

When the controversy first came to the attention of the Children’s Agency in April, an investigation was made and a report rendered to the court. It was then found extrajudicially that the child was not neglected. Circumstances may change so quickly that this report was not considered in the making of this determination.