#### The People ex rel. Alvin G. Cornelius, Relator, *v.*Gardner Callan and Lena Callan, Defendants.

(Supreme Court, Allegany Special Term,

October, 1910.)

Adoption of children — Mode and sufficiency of adoption — Notice to father.

Parent and child — Custody and control, of child — Right of parent as against third person.

In a proceeding instituted by a father, by writ of habeas corpus, to secure the custody of his infant child, an order of adoption of the child by the respondents is ineffectual to prevent the court from disposing of the custody of the infant so as to promote his .best interests.

Where a husband leaves his wife in consequence of a quarrel and goes away, saying he will not live with her again, but disposes of substantially all bis property and devotes the proceeds of it to the support and maintenance of bis wife and children, and sends additional moneys to a substantial amount for the same purpose, and bis whereabouts are known or easily ascertainable by bis wife and known to the persons who sought to adopt one of his children, there has been no abandonment of tlic wife and children such as would suffice to dispense with notice to him of the adoption proceedings.

Trial of issues raised by petition, writ of habeas corpus, return and reply.

Jesse S. Phillips, for relator.

Harry L. Allen, f-or defendants.

*188Brown, J.

On January 27, 1910, Alvin G. Cornelius after a quarrel with his wife, Hattie Cornelius, left her, stating that he was going away and would not live with her again; on that day Alvin G. Cornelius delivered to his father, Elmer Cornelius, substantially all of his property, consisting of one pair of horses, seven and one-half tons of hay, 100 bushels of potatoes, a quantity of farming implements, directing his father to sell such property and use the avails thereof for the support and maintenance of his wife Hattie; on that day Alvin G. Cornelius left his home in Ward, Allegany county, H. Y., went to Akron, 0., and obtained employment in a rubber factory, where he remained until July *i,*1910. During his stay in Akron, Alvin frequently corresponded with his father and forwarded money to the extent of forty dollars for the father’s use in supporting the wife Hattie; from January 27, 1910, to about April 1, 1910, the wife Hattie remained at the house formerly occupied by herself and husband, during which time she had her support and maintenance from the supplies left in the house by her husband and additional necessaries furnished by Elmer Cornelius, she being advised that she was being supported by Alvin Cornelius, her husband; about the first of April, Elmer Cornelius took his d'aughter-in-law into his own home where she lived as a member of the family until the 28th day of May, 1910, her support and maintenance being furnished from the property of her husband, Alvin Cornelius. On the 7th day of May, 1910, the boy Maurice Cornelius was born to the wife Hattie, the attending physician being paid for his services from funds furnished by the relator, Alvin Cornelius. On the 28th day of May, 1910, Hattie Cornelius left the home of Elmer Cornelius and went to the home of the defendants, her uncle and aunt, taking with her her two year old child and the baby Maurice. On July 1, 1910, Hattie Cornelius and the baby Maurice went before the county judge of Allegany county; and the defendants and Hattie Cornelius executed an agreement and consent for the adoption of the'baby Maurice, by the defendants, under the Domestic Relations Law, stating in the agreement that the father, Alvin Cornelius, *189had abandoned the child, thus dispensing with the necessity of furnishing the consent of the relator to such adoption, filing with the county judge an affidavit of Iiattie Cornelius in which she stated that the relator left her on the 27th of January, 1910, saying that he was going away; that he was going to leave her and her children and would never come bach and since said time she had not heard a word from him. Thereupon the county judge made a final order allowing and confirming the adoption of the infant Maurice by the defendants. At the time ■ of the execution of the agreement and consent for such adoption, the defendants well knew that the relator was at Akron, 0., and had the means of communicating with him, they having a son and daughter living at Akron with whom they frequently corresponded and who were friends and companions of the relator.

On July 7, 1910, the relator returned to his home in Allegany county and shortly thereafter learned that his son Maurice had been adopted by the defendants with the consent of his wife, Hattie, and that he had not been consulted as to such adoption for the alleged reason that he had abandoned the child. The relator demanded the possession of the child from the defendants, which was refused, whereupon the relator sued out a writ of habeas corpus. The defendants make return to such writ that they retain custody of the child under and by virtue of the fact that the relator had abandoned the child Maurice and that such order of adoption is valid and of full force and effect- and that the relator is -an improper person to have the custody of the child. The relator put in issue the matters set forth in the return by a reply.

Prom -a careful consideration of the evidence it very satisfactorily appears that the relator did not abandon his wife on the 27th day of January, 1910, and that the child Maurice had not been abandoned by the relator on the 1st day of July, 1910, the date of the adoption order, and that the relator is a fit and proper person to have the care and custody of his son.

The defendants contend that the order confirming their *190adoption of this three months old baby is conclusive upon this court and must remain in full force, determining their rights to the custody of the child, until abrogated or can-celled by an order of the county judge; that, the county judge having granted the order, its full force cannot be interfered with in this proceeding, no matter how false and untrue the statements relative to the abandonment of the child by its father may be; and they invoice the benefit of section 2032 of the Code of Civil Procedure providing that the person must be remanded when it appears that he is retained in custody by the final order of a competent tribunal made in a special proceeding. Such a contention would result in the relator being utterly unable to secure the custody of his son through any statutory proceedings. The Domestic Relations Law only provides for the abrogation of an order of adoption in three cases: First, voluntary application to the county judge by interested persons; and abrogation is then only provided for when the county judge is satisfied that abrogation is desired by all persons concerned; *Second,*upon the application of the child, when the child has been adopted from an institution and upon the ground of cruelty, etc.; and, Third, upon the application of the foster parents, when the child has been adopted from an institution and upon the ground of desertion, etc., by the child; none of which proceedings could be instituted by this father. But, say the defendants, the county judge has inherent power to vacate his order upon proof that the jnrisdictional fact of abandonment was misstated in the adoption proceedings. So has the Supreme Court inherent power to brush aside any instrumentality that interferes with the proper custody of children, especially when it is charged with the duty of protecting their interests. While it may be true that this court could not abrogate, cancel or destroy the order of adoption, yet it can decree that such order of adoption is ineffectual to prevent this court from disposing of the custody of this infant as its best interests may appear. While it is true that the father was not a party to the proceedings that resulted in the order; that he has not had his day in court; that the necessity of his .appearance and his right to object *191to suoh adoption were denied him through false statements as to his alleged abandonment, and it may be that, before the rights of the father can be fully restored to him, permanently, some proceeding must be instituted before the county judge seeking a cancellation of the order of adoption, yet, where the welfare of the child is the chief object to be attained and is the guide for the judgment of this court in these proceedings, such order of adoption, so obtained by false statements ■ as to the relator’s abandonment, cannot be urged as an effective objection to the awarding of the custody of this child to its father when it appears that such custody will be for the best interests of the child.

In view of all the facts and circumstances, no satisfactory conclusion can be reached other than that of awarding to the relator the care and custody of his five months old son, Maurice Alvin Cornelius.

bindings may be prepared in accordance with this memorandum, granting the relator fifty dollars costs.

Ordered accordingly.