Concur: Judges Burke, Scileppi, Bergan and Breitel. Judge Jasen dissents and votes to reverse in which Chief Judge Fuld concurs.
Order affirmed, without costs and without prejudice to an application for visitation rights by the petitioners at Special Term. No opinion.
Jasen, J. (dissenting). Ronald Di Rocco and Marge Starr Di Rocco were married in 1962 and had two children; one born in 1963 and the other in 1966. The marriage was troubled and at one time the Di Roccos separated for about a year. They later reconciled, but their marital discord continued. Their financial status deteriorated, and in 1966 Ronald filed for bankruptcy. Then, tragically, on October 9, 1966, Ronald shot and killed his wife and committed suicide. This proceeding, in the nature of habeas corpus, was brought to determine who should receive custody of the two infant children. The parties are Anthony De Rocco (brother of the late Ronald Di Rocco) and his wife, Bernice, and Bruce J. Starr (brother of the late Marge Starr Di Rocco) and his wife, Edith.
The hearing on the petition at Special Term dealt mainly with the fitness of the two contesting couples and basically established that the De Roccos live in Ossining (the scene of the tragedy), have no children of their own and are Roman Catholic. The Starrs live in North Grafton, Massachusetts, have one child, worked with children as camp counselors, and are Episcopalians. At the hearing Bruce Starr testified that he would rear these infants as members of the Roman Catholic faith, if the court so directed.
In awarding custody of the children to the Starrs, Special Term noted in part:
"[The] court finds that the best interests of the infants would be served by placing them with petitioners Starr. Not only was the court most favorably impressed with them when they appeared before the court, but the court finds that they are of a temperament to best care for the children. They have the experience, that is demonstratd with their present child, they have a home to accommodate the children now, and in placing custody with them, they will be removed from the locale of the tragedy which befell their parents, and thus, in the future, spared possible embarrassment and degradation.
"The court is mindful of the difficulties regarding visitation by the De Rocco family with the children occasioned by the removal of the children from the State of New York. However, the court is convinced that the best interests of the children will be served by their removal from the area in which the tragedy befell their parents."
Relying upon section 32 of article VI of the New York State Constitution,*fn1 the Appellate Division reversed on the law and the facts, the majority stating in part: "Here there is no * * * compelling reason to avoid the constitutional mandate. There are available able and willing persons, blood relatives of the children, who profess the same religious faith as that of the children and against whom no cause for rejection exists."
The principal question on this appeal is whether section 32 of article VI of the New York State Constitution compels the placement of a child with persons of the same religious faith as that of the child.
I am of the opinion that it does not. The words "when practicable" in the constitutional provision remove the absolute requirement that a child be placed with persons of the same religious faith as that of the child and grant the court discretion in exceptional situations to approve as custodians persons of a faith different from the child's.
In Matter of Maxwell (4 N.Y.2d 429), we had occasion to pass on the construction of the phrase "when practicable". There, a Canadian woman who had previously had five of six children taken away from her by the Canadian government because she was an unfit mother, came to Buffalo to give birth to a baby which had been sired by her paramour. Before the birth, the mother indicated she wished to put the child up for adoption. After the child was born, the mother signed an affidavit in which she consented to the adoption of her child and stated that she embraced no religious faith. The child was taken by a Presbyterian couple and about a year later, at the adoption proceedings, the mother returned demanding that the child be placed with persons of the Roman Catholic faith.
In discussing section 373 of the Social Welfare Law, which provides that "in granting orders of adoption of children, the courts shall, when practicable, * * * give custody * * * only to * * * persons of the same religious faith as that of the child" (emphasis supplied), the court noted that the term "when practicable" is of broad content, and designed to allow the Trial Judge discretion to approve as ...