In re the Revocation of Letters of General Guardianship Issued to Gustow

Hogan, J.

The authority of the surrogate to revoke letters of guardianship is conferred by section 2569, Code of Civil Procedure (former section 2832), which section contains several separately numbered subdivisions enumerating the causes for which an order of revocation may be made. Section 2570 requires that the proceeding for revocation must be instituted by petition which must set forth the facts showing that the case is one of those specified in section 2569 of the Code. The petition in this proceeding does not comply with the requirements of the Code. It does not set forth facts disclosing any one *376 of the causes specified in the Code as a reason for a revocation of letters of guardianship granted to appellant. In effect it merely recites that the petitioner is the father of the infant, financially able to provide for her, and that his second wife, the stepmother of the infant, desires, or is willing that the infant shall be brought up in their household. The petition alleges that the father consented to the appointment of appellant as guardian of the child, but it fails to state facts tending to question the nature or sufficiency of the care of the infant, the surroundings and environment in which she is being reared; that the welfare of the child is not being promoted by the care bestowed upon her by appellant, or that the interests of the infant' will be promoted by the appointment of another person as guardian. Upon the hearing the petitioner testified upon that subject that he could not find anything to criticize. The surrogate took cognizance of the proceeding notwithstanding the defects pointed out, issued a citation to the guardian of the infant and after a return had been made by the guardian a hearing was had before the surrogate. Our determination of this appeal might be based upon the insufficiency of the petition. We deem it proper, however, to call attention to óertain alleged errors upon the hearing presented by counsel for appellant..

The surrogate before whom the hearing was had in effect held that the petitioner by reason of his relation as father of the infant and his ability to provide for her was entitled to her custody. The surrogate is in error. The cases are numerous where a parent is deprived of the custody of his or her child, or children, in actions for separation or divorce, in habeas corpus proceedings as well as in equity proceedings. The controlling principle in all cases being the welfare of the child which, in the case of an infant of tender years, involves proper care and nurture, suitable environment, healthful surroundings and education, mentally and morally. A parent *377 who is a drunkard, an incompetent, a notoriously immoral person, cruel or unkind towards his child would not he considered a suitable person to have the custody of a young child, when the welfare of the child is considered, simply because of the relation of parent and child. While the parent ordinarily is entitled to the custody of a child, the welfare of the child may be superior to the claim of the parent.

(Matter of Hartman, 38 Hun, 644 , without opinion, opinion reported in 23 N. Y. Wkly. Dig. 128 ;

Matter of Watson, 10 Abb. [N. C.] 215;

Matter of Cuneen, 17 How. Pr. 516 ;

People ex rel. Pruyne v. Walts, 122 N. Y. 238, 241 ;

Wilcox v. Wilcox, 14 N. Y. 575 ; approved, Matter of Knowack, 158 N. Y. 482, 490 .)

In the case at bar, had the petitioner been appointed guardian of the infant in the first instance and thereafter in a proceeding instituted for a revocation of the letters ' of guardianship, it should appear that the interest of the infant would be promoted by the appointment of another person as guardian, the fact that petitioner was the father of the infant would not prevent the appointment of a guardian of the person of the child in his place. (Code Civil Procedure, section 2569, subdivision 7.)

The surrogate modified his declaration of the law later during the hearing. Counsel for appellant desired to show by evidence as he stated “ the difference between the home life that the child now has and the home life it will have if she is taken from her present guardian.”

The surrogate stated that he would not permit such proof unless the appellant showed that the father’s house was indecent or immoral.

Counsel for appellant also sought to establish “ by the very words of the father that this (proceeding) is only a sudden impulse; that he (petitioner) had no affection for the child and has none now, and that it is not for the best interest of the child to revoke this guardianship.” The surrogate inquired of counsel as to whether or not he *378 questioned the morality of the father, the regularity of his marriage or married life, his financial ability to bring up the child or the fact that he was the father of the child. Counsel replied in the negative. Thereupon the surrogate stated, “ That is all there is to the matter, all other evidence is beside the question.”. Counsel excepted to the ruling. The exception was well taken. It was not incumbent upon appellant to establish that she should not be removed as guardian of the infant until the proper issue was tendered. The burden of alleging and establishing that the interest of the infant would be promoted by the appointment of a guardian in her stead was upon the petitioner. The rule stated by the surrogate would require appellant to establish that the petitioner was not a suitable person to be appointed guardian, rather than to defend against a charge that the welfare of the infant would be promoted by her removal.

Evidence tending to show lack of affection in a parent for his or her child is material and competent. As pointed out, cruelty towards a child may be a sufficient cause for depriving a parent of the custody of his or her child. Can it be successfully asserted that the interests of an infant two and one-half years of age will be promoted if the child is deprived of affection, sympathy and devotion so essential to its welfare, or that the future of the child will be benefited if it is reared in an atmosphere of indifference ? In such surroundings, the mere presence of the child tends to irritation, its necessities are neglected, its character cannot be molded along proper lines and grave danger exists that it will be governed by methods of cruelty rather than by patience, reason and affection. Open and public declaration of lack of affection for a helpless infant or a child of tender years, if made by a parent, are not hearsay statements as stated by the surrogate, but admissible in evidence as bearing upon the' primary question, the welfare of the infant or child; they might be of sufficient weight to justify a determination *379 of the proper person to have the custody of the child, hut in any event such statements if made in connection with other circumstances and evidence are proper for the consideration of the surrogate.

In view of the errors pointed out it is unnecessary to consider other questions argued by counsel for appellant.

The orders of the Appellate Division and of the surrogate should be reversed, with costs to appellant in the Appellate Division and in this court, and the proceeding dismissed.

Hiscocic, Oh. J., Chase, Collin and Crane, JJ., concur; Cardozo, J., concurs in result to the extent of voting for reversal and a new hearing; McLaughlin, J., absent.

Orders reversed, etc.