255 A.D. 863 | N.Y. App. Div. | 1938
Order of the Children’s Court of Westchester county awarding to petitioner the custody of his child and directing the maternal grandparents to return the said child to petitioner’s custody, reversed on the law and proceeding dismissed, without costs and without prejudice to a proceeding in a court having jurisdiction. Petitioner failed to prove that the child is “ neglected ” as that term is defined in section 2, subdivision 4, of the Children’s Court Act. It is not the meaning or intent of the statute that a child shall be deemed “ neglected ” merely upon a showing that some one other than the present custodian has a paramount right to the child’s custody. Not only is such a construction a strained one; but, since the jurisdiction of the Children’s Court is declared to be exclusive, it would indicate that the Legislature intended to oust the Supreme Court of jurisdiction in habeas corpus proceedings relative to the custody of children, which, of course, is not likely. In the absence of proof that the child was neglected within the proper meaning of that term as defined by the statute, the Children’s Court was without jurisdiction of the subject-matter of the proceeding. (Matter of Cole, 212 App. Div. 427.) Lazansky, P. J., Carswell, Davis, Adel and Close, JJ.,' concur. [See post, p. 987-1