In re Curiale

Order reversed on the law and facts, without costs of this appeal to any party and writ sustained and custody of *894 infant child awarded to petitioner. Certain conclusions of law disapproved and reversed. New finding of fact made. Memorandum: On the trial of the issues the petitioner and the infant’s father testified they were to be married. The Official Referee was suspicious that these arrangements would not be carried out, which suspicion appeared to be one of the principal reasons he awarded custody to the respondents. On the argument of the appeal it was stated that the marriage had taken place and the marriage certificate was exhibited by counsel for petitioner. While this was no part of the record, it does now appear that one reason given by the trier of the facts for the failure to grant the writ no longer exists. The Official Referee did not find that petitioner is an unfit person to have custody of her child, nor did he find her apartment was an unsuitable place, and there was insufficient proof to make such findings. The record does not disclose that respondents have taken any steps to adopt the infant, although they have set forth in their answer that they desired to do so but there were legal difficulties which prevented such proceedings. If no adoption order is secured, they may, in the future, change their minds as to treating the infant as if he were their own child. On this record we think the petitioner, the mother of the infant, must be awarded his custody. All concur. (Appeal from an order dismissing the habeas corpus proceedings and awarding custody of an infant to respondents.) Present — Taylor, P. J., Vaughan, Kimball, Piper and Wheeler, JJ.