269 A.D. 791 | N.Y. App. Div. | 1945
Motion to amend decision granted so as to read “ reversed on the law and facts”, with $10 costs. Motion in all other respects denied. Decision of this court, handed down March 7, 1945 [ante, p. 718], is amended to read as follows: Appeal from an order of the Ulster County Court, denying petitioner-appellant’s motion to vacate an order of adoption. Petitioner is the mother of the adopted infant, and Harold Atkins, one of the respondents, is the father. The adoption took place under rather extraordinary circumstances when the infant was less than two months of age. The court dispensed with the requirement of the statute that the infant should reside with the foster parents for a period of six months before the order of adoption was signed. While this was discretionary we think that the court’s discretion was not wisely .exercised under the circumstances, nor do we agree with its construction of the statute to the effect that the requirement of a residence period was not intended for the benefit of the mother of the child. It was, in our opinion, intended for the benefit of all parties in any adoption proceeding, whenever applicable. In this case we do not find that the mother ever expressly asked that this provision of the statute be dispensed with, nor do we find that its terms and purpose were ever explained to her. In the interests of justice the order appealed from is reversed on the law and facts, without costs, and the motion to vacate the order of adoption granted, without costs. The order granting the motion to vacate the order of adoption should provide for the restoration of the child to petitioner. All concur.
