Opinion
May 9, 1951.
Appeal from Supreme Court.
Petitioner is the father of Kathryn Arlene Benning, an infant, born August 24, 1948. The infant's mother died in childbirth. After her death petitioner placed the infant in the custody of respondents who are her grandparents and her aunt. He remarried on April 9, 1949. When petitioner left his daughter with the grandparents and the aunt he left $20 for the support of the child and has contributed nothing toward her support since that time. Petitioner instituted this proceeding to obtain the custody of his daughter. The Special Term dismissed the writ, without prejudice for renewal of the application when the infant arrives at the age of four years. The order appealed from is modified, on the law and facts, so as to give petitioner the right to visit the child at all reasonable times and as so modified is affirmed, without costs.
Foster, P.J., Heffernan and Bergan, J., concur; Brewster, J., dissents, in the following memorandum, in which Deyo, J., concurs:
I dissent. There is nothing in this record to establish that the petitioner has abandoned his child or that her interests will best be served by depriving him of his paramount parental right of custody.