Wade C. v. Rachael D. 78 A.D.2d 937

Appeal from an order of the Family Court of Chemung County, entered April 15, 1980, as amended by an order of the same court, entered May 5,1980, which, inter alia, dismissed respondent’s cross petition in a child custody proceeding. Petitioner commenced the instant proceeding to obtain the custody of his two infant children following the death of his wife. However, before the return date, he executed a surrender instrument pursuant to section 384 of the Social Services Law. Respondent, the children’s maternal grandmother, filed a cross petition seeking the same relief and now appeals from the dismissal of her application. Since respondent was initially appointed the guardian of their person and property and the children began living with her immediately after their mother’s demise, Family Court should not have dismissed her petition without a hearing into their best interests (see Matter of Gomez v Lozado, 40 NY2d 839; Matter of Bennett v Jeffreys, 40 NY2d 543) particularly when, as here, it did not appear that petitioner had guardianship or custody. Order modified, on the law and the facts, by reversing so much thereof as dismissed respondent’s cross petition, matter remitted to the Family Court of Chemung County for further proceedings, and, as so modified, affirmed, without costs. Mahoney, P. J., Sweeney, Kane, Casey and Herlihy, JJ., concur.