People ex rel. Francois v. Ivanova

Memorandum by the Court. Order, entered on April 17,1961, to the extent it grants visitation rights to the petitioner, affirmed. The child was born out of wedlock. Petitioner is the father and respondent the mother. Subsequent to the birth of the infant the petitioner obtained a divorce decree from his wife. The parties did not marry, each party blaming the other for refusing to so do. It appears, however, that the parties and the infant lived together as a family unit for upwards of six years prior to the commencement of this proceeding. The parties and their attorneys were heard at length below. Neither party offered or requested the opportunity to present evidence. The court declared its intention to award custody to the mother and visitation rights to the father. Thereafter appellant’s counsel excepted but did not request any opportunity to offer evidence. While technical omissions of such nature will not be permitted to defeat the best interests of the child, nevertheless the record 318 adequately supports the determination appealed from. On this appeal the respondent-appellant contends the petitioner has no legal rights in respect of visitation because the child is illegitimate. The best interests of the infant is the guiding principle in the determination of custody and the right of visitation. (Finlay v. Finlay, 240 N. Y. 429, 433, 434; Matter of Bock [Breitung], 280 N. Y. 349, 353.) The father of an illegitimate child may be awarded custody (People ex rel. Meredith v. Meredith, 272 App. Div. 79, affd. 297 N. Y. 692); and, a fortiori, the right of visitation. Most significant, if ever we must respect the opportunity afforded the Trial Judge to evaluate the character of the persons confronting him, it is in a proceeding of this nature, where the Judge saw and held extensive conversations with the parties, and enjoyed a unique position to form an estimate of their qualities. The printed record in this proceeding is not a satisfactory substitute for such firsthand observation. No other question is presented on this record and no other point is made by the appellant. In a proceeding of this nature we are not called upon to adjudicate controversies between parents. (Finlay v. Finlay, supra, p. 434.)