In re Giliberto

In a habeas corpus proceeding brought by the mother to recover custody of her son, now six years old, from his maternal aunt and her husband, with whom the child had resided since he was two months old, the appeal is from an order which sustained the writ and directed the return of the infant to the respondent. Order affirmed, without costs. In our opinion, the evidence sustains the findings of the Special Term that the respondent did not abandon the child and is not presently unfit to perform the duties and exercise the privileges of parenthood, and that the transfer of custody will not be detrimental to the child. Under such circumstances, 693 the paramount right of the natural parent to custody was properly enforced. (Cf. People ex rel. Kropp v. Shepslcy, 305 N. Y. 465; Matter of Gambale v. Biganti, 2 A D 2d 863.) Nolan, P. J., Murphy, Ughetta and Kleinfeld, JJ., concur; Beldock, J., dissents and votes to reverse the order and to dismiss the writ, with the following memorandum: The custody of this six-year-old boy should be withheld from this respondent because the evidence shows that she abandoned or transferred her parental rights to appellants when the child was two months old. (Matter of Benning [Nigro], 303 N. Y. 775.) In my opinion, the welfare of the child compels the continuance of its custody with appellants.