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Ex parte Livingston

Supreme Court of New York, Appellate Division

May 17, 1912

In the Matter of the Application of MYRTLE LIVINGSTON, Appellant, for a Writ of Habeas Corpus for JOHN JOSEPH LIVINGSTON, an Infant. SARAH J. HYMAN, Respondent.

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APPEAL by the petitioner, Myrtle Livingston, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 20th day of December, 1911.


Edward T. Curran, for the appellant.

Charles H. McCarty, for the respondent.



This is an appeal from an order of the Special Term dismissing a writ of habeas corpus. The petitioner is the mother of a boy, born in lawful wedlock, who is now in the custody of the respondent. The father has disappeared for several years. On the return of a writ of habeas corpus sued out by the mother to recover possession of her child, the respondent filed a return wherein she claimed the right to the custody of the child by virtue of an order of adoption made by the county judge in Kings county in July, 1911. The petitioner traversed this return by setting up that no notice, either actual or constructive, had been given to her of the proceeding and that, therefore, as to her the order of adoption was a nullity. The learned court at Special Term (74 Misc. 494), held that this traverse did not raise a question of law which affected the validity of the order of adoption, and made an order dismissing the writ. The petitioner now appeals from said order.

The provisions of our statutes regulating the method and effect of adoption of children are to be found in sections 110 to 118, inclusive, of our Domestic Relations Law (Consol. Laws, chap. 14 [Laws of 1909, chap. 19], as amd. by Laws of 1910, chap. 154). At common law adoption of children as now understood did not exist, and as now applied its basis is entirely statutory. ( Matter of Thorne, 155 N.Y. 140.) It was well known in Roman law, and the various statutes in this country which create and regulate the power of adoption find their original basis in Roman jurisprudence. Under that system of law adoption could take place under certain conditions, not only of minor children but of adults, while under our statutes it is confined to minor children. Under the Roman law, as to a minor child, no legal method of adoption was known without the

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consent of the person who had ' patria potestas' over the child. Then the family was recognized as the unit of society, and family rights and duties were defined and regulated with precision. By our statute adoption cannot take place without the consent of the parents of the minor child, unless such parents have forfeited their natural rights to the custody of the child under circumstances clearly defined by the statute itself, and one of which is an abandonment of the child by the parents.

In this case the petitioner did not consent to the adoption of her child, but the county judge dispensed with such consent on an adjudication made by him that the petitioner had in fact abandoned the child. Our statute contains no express provision requiring the giving of notice to a non-consenting parent who is claimed to have abandoned the child. The question arises whether such adjudication was within the jurisdiction of the county judge without actual or constructive notice to the parent. This question is without reported precedent in this State. The only authority which approaches it is that of Matter of MacRae (189 N.Y. 142), but, as I shall show later on, it is not strictly in point here. In other jurisdictions the question has arisen in one form or other with considerable frequency.

In Van Matre v. Sankey (148 Ill. 536) a question arose as to the right of a child which had been adopted under the laws of Pennsylvania to share in the descent of lands of the foster parents located in the State of Illinois. The attack was based upon the ground that no notice had been given to the child, who was about the age of nine years, both her parents being dead. It was held that the absence of notice to the child itself, it being of such tender years, was not fatal, inasmuch as both parents being dead, the child was the ward of the State as 'parens patriae.' The child, however, had a legal guardian who did consent.

An attempt was made in Matter of Williams (102 Cal. 70) to raise this precise question, and while the court intimated that where a parent had abandoned his child notice to him of an adoption proceeding might not be necessary, it at the same ...

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