People ex rel. Kleppe v. Cuisinier

1038 Upon the proof adduced in this proceeding the learned Justice at Special Term was amply justified in concluding that the best interests of the children required that their custody be with a person other than their mother. The proof was devoid, however, of any showing that the father is in any way disqualified or incapable properly to take care of them. Consequently, he has a paramount right to their custody as against the maternal grandparents. (Matter of Scattergood, 265 App. Div. 948; People ex rel. Boulware v. Martens, 232 App. Div. 258, affd. 258 N. Y. 534; People ex rel. Hausler v. Stegmeier, 240 App. Div. 901, affd. 264 N. Y. 483; Matter of Livingston, 151 App. Div. l, 7.) A fortiori, is he entitled to their custody because in any event it would be for the best interests of the children, particularly since the vesting of custodial rights in the maternal grandparents would be, under the circumstances disclosed here, tantamount to continuing custody in the mother herself. Nolan, P. J., Carswell, Johnston, Wenzel and MaeCrate, JJ., concur.