Opinion
December 17, 1956
In a habeas corpus proceeding to determine custody of a minor child, a hearing was held. Part of the appellant's evidence relating to the unfitness of respondent to have custody was adduced, following which the parties stipulated as to custody, visitation and support. An order was entered embodying the terms of the stipulation and directing that the writ be withdrawn. Thereafter, appellant moved to vacate the order, to be relieved from the stipulation, and for a hearing in full, on the ground that he was ill-advised in entering into the stipulation. The appeal is from the order denying the motion. Order affirmed, without costs. The writ having been withdrawn, there was no longer a pending proceeding in which appellant's motion could be entertained. However, a new writ may issue and this stipulation is not of such character that, in proceedings on any new writ, it would be held to be a binding contract which could be set aside only upon grounds authorizing rescission. (Cf. Bond v. Bond, 260 App. Div. 781; Yonkers Fur Dressing Co. v. Royal Ins. Co., 247 N.Y. 435.) The child's rights are superior to those of the parties to the stipulation. Its rights may not be foreclosed by their stipulation. It is the duty of the court to determine custody on the basis of the welfare of the child. ( Matter of Bachman v. Mejias, 1 N.Y.2d 575.) Nolan, P.J., Wenzel, Beldock, Ughetta and Kleinfeld, JJ., concur.