In the Matter of Robert Stratton, an Infant. Mary J. Stratton et al., Appellants; Ward Stratton et al., Respondents

In the Matter of Robert Stratton, an Infant. Mary J. Stratton et al., Appellants; Ward Stratton et al., Respondents. [MAJORITY] Order reversed on the law and facts, without costs of this appeal to any party, and proceeding dismissed, without costs. Memorandum: The Children’s Court of Steuben County granted an order giving temporary custody of the infant to the maternal grandmother, the appellant Frances Wood. Such order contained a direction requiring the infant to be kept within the county of Steuben, New York State. The appellant, Frances Wood, took the infant out of the State of New York into the State of Florida where the infant now is with his mother, the appellant Mary Jane Stratton. For such removal of the child from the State, the appellant Frances Wood was cited and held in contempt by the Children’s Court in Steuben County. Prior to being so cited and brought into court on the citation, the appellant Frances Wood had no knowledge or information of the direction forbidding the removal of the child from New York State nor had she been advised of such direction. This lack of knowledge relieves the appellant Frances Wood from the charge of contempt. When the Children’s Court of Steuben County granted temporary custody of the infant to the appellant, Frances Wood, such court did so after deciding that the maternal grandmother of the infant was a person more suitable than the paternal grandparents as temporary custodian for such infant. With no change in the circumstances or conditions as to such suitability and when granting the prayer of the petitioner to withdraw the original proceeding as to the custody of the child, the Children’s Court made an order directing permanent custody of the infant to the paternal grandparents, respondents herein. The appellant, Mary Jane Stratton, now holds custody of the infant by virtue of a decree of the Florida court; the jurisdiction of such court and the validity of such decree have not been challenged. Such order of permanent custody should not stand because it is contrary to the original finding as to suitability. All concur. (The order awards custody of an infant to its paternal grandparents.) Present — Cunningham, P. J., Taylor, Dowling, Harris and MeCurn, JJ.