This is an application brought by respondent, father, for custody of the infant child, Eric, born February 10, 1964, pursuant to section 511 of the Family Court Act. Respondent has acknowledged paternity of the child.
Since this proceeding appears to be a case of first impression under section 511 of the Family Court Act, we must therefore be guided by principle as well as by prior authority.
Prior to 1960, section 60 of the New York City Criminal Courts Act, gave the Court of Special Sessions "exclusive jurisdiction in proceedings to establish paternity and to provide for the support". It also gave the court jurisdiction in paternity proceedings to determine the question of custody relative to their immediate care.
In formulating the Family Court Act the New York State Joint Legislative Committee on Court Reorganization made the following pertinent comments regarding section 511: "This jurisdictional grant is designed to permit the Family Court to draw upon all its resources in protecting and caring for the innocent child of an illicit relation. The new section also permits the filing of a neglect petition at any time in the proceedings. This combination of powers should result in practical improvements and not simply in a change of nomenclature." (Emphasis supplied.)
The conclusion would seem to flow inevitably that the Family Court has the power under section 511 of the Family Court Act to determine custody of an illegitimate child. The inclusion of the words "determine custody" in this section evidences a clear intent by the Legislature to confer such power on the Family Court.
Respondent is a married man with two legitimate children. It appears that in April, 1961, he met petitioner and thereafter they entered into a meretricious relationship as a result of which petitioner was impregnated and gave birth to the infant child, Eric, the subject of this custody proceeding, on February 10, 1964. The illicit relationship continued until late in 1967.
Petitioner testified that prior to the birth of the infant, respondent had promised he would divorce his wife and marry petitioner, which promise if it were made, has certainly not been kept.
The child has resided with petitioner (mother) from the date of birth, except for the period of visitation with respondent.
Respondent vigorously urges that the best interest of the child would be served by granting custody to him since he is a man of some means which will enable him to furnish the child with economic advantages, as well as creating an environment of a good stable family relationship.
Apparently respondent's wife who is now aware of the existence of the illegitimate child, is willing to accept Eric as a member of her household.
Respondent further urges that petitioner is mentally unstable and not fit to bring up the child properly and cites, in support of his position, the fact that petitioner some five or six years ago attempted suicide by slashing her wrists requiring hospitalization for 10 days, during which time she was seen by a psychiatrist, and finally, respondent urges that her present conduct proves her to be unfit to rear the child. The evidence discloses that respondent has supported the child from birth until the early part of 1968. At that time, because of the alleged misbehavior of petitioner regarding visitation, respondent, on the advice of his counsel, ceased making the payments. As a result of the non-payments, the paternity petition was instituted.
Respondent has testified as to his comfortable financial ability and his overwhelming desire for the child's custody. He admits the meretricious relationship, and on cross-examination further admitted that prior to the suicide attempt he had promised to marry petitioner. This court does not question the sincerity of the respondent's protestation of love and affection for the child.
Respondent further testified that petitioner had threatened to either kill herself or the child if the respondent took the child from her. Following these threats in 1967, respondent lodged a complaint with the Society for the Prevention of Cruelty to Children, alleging that petitioner was neglecting the child. The complaint was investigated and completed. A witness from the Society for the Prevention of Cruelty to Children testified that the investigation did not disclose any ...