People ex rel. Boulware v. Martens

We are of opinion that the relator is entitled to the custody of his children. The amendment of 1923 (chap. 235) to section 70 of the Domestic Relations Law is limited in so far as it relates to the custody of minor children to cases of differences arising between parents. The section has no application to the right of a surviving father to such custody. The law, frequently declared (People ex rel. Byrne v. Brugman, 3 App. Div. 155; People ex rel. Beaudoin v. Beaudoin, 126 id. 505; affd., 193 N. Y. 611; Matter of Thorne, 240 id. 444), is that a surviving parent’s right to the custody of his…