In re Hazelton

285 A.D. 1204, 140 N.Y.S.2d 556, 1955 N.Y. App. Div. LEXIS 7159

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 11, 1955
• Status: Published

Opinion

Appeal from an order of Children’s Court, St. Lawrence County. The mother of three children, ages eight, six and four, appeals from an order of the Children’s Court which vests custody of the children in the Commissioner of Public Welfare. There was no finding that the children were neglected, abandoned or delinquent, nor that the mother was unfit to have custody of her children. The jurisdiction of Children’s Court extends to eases where infants are neglected, abandoned or delinquent, as defined in the Children’s Court Act (People ex rel. Malcolm v. Malcolm, 281 App. Div. 714; Matter of Tangen, 277 App. Div. 827) and a finding of neglect, abandonment or delinquency is a prerequisite to an award of custody by that court (Matter of Cole, 212 App. Div. 427). In the absence of proved unfitness, a parent has a superior right to custody of children, unless that right has been abandoned (People ex rel. Kropp v. Shepslcy, 305 N. Y. 465). Order reversed, without costs and a new hearing ordered. Foster, P. J., Bergan, Halpern, Imrie and Zeller, JJ., concur.