Pelaez v. Maxwell , 22 Misc. 2d 245 ( 1959 )

Hugh S. Coyle, J.

This is an application by Joseph M. Pelaez by means of a writ of habeas corpus, to obtain custody of Maria Andrea Pelaez and Joseph Michael Pelaez, infants, from his wife, Mary Holt Hill Maxwell.

Petitioner and his wife were divorced in Cuba, on March 1, 1955. By the terms of the decree custody of the two children above named was awarded to petitioner, and his wife was given custody of a younger child. By agreement dated July 22, 1955 the custody agreement was reaffirmed in writing between the parties. The sole purpose of the agreement dated July 22, 1955 was to provide for visitation rights. Said agreement provides that each party shall allow the child or children in his care to visit the other party at such times and places as mutually agreed upon by them. Petitioner in accordance therewith sent the two children in his custody to visit their mother in New York City at the end of the school year in 1955, 1956, 1957 and 1958. Each year with the exception of 1958, the children were returned to him in Havana, Cuba. At the end of the Summer of 1958, the respondent wife refused to return the children to petitioner in Cuba and this application followed.

After hearing the arguments of counsel for the parties and hearing the parties testify, it is the opinion of this court that the writ should be sustained, and the custody of the children is awarded to petitioner. The petitioner’s economic status is such that he can adequately provide for the care and education of the children. In addition nothing has been shown warranting the abrogation of the foreign decree and the subsequent contract or agreement of the parties. Settle order.