The only valid, subsisting and final determination of the courts of Puerto Rico to which this court is required to give recognition is the original judgment of divorce of July 23, 1953. By this judgment, the court found the mother to be entitled to the patria potestas thus placing upon her the responsibility for the child’s moral and physical welfare. At the same time, on her consent, it awarded temporary custody to the paternal grandparents.
She thereafter, pursuant to the authority which had been thus conferred upon her — if, indeed, any such authority was necessary—properly and for reasons which she deemed sufficient made application to the Puerto Rican court for a change of the temporary custody of the infant. The court in intermediate orders declined to consider the application until the child should be returned to Puerto Rico, which the mother declined to do. Thereupon, the instant proceeding was instituted by the father and an attorney representing the grandparents. The boy (aged six years) being presently a resident of this State, our courts may make a different award with respect to his custody if intervening and current circumstances have changed (Ansorge v. Armour, 267 N. Y. 492; Matter of Young v. Roe, 265 App. Div. 858, affd. 290 N. Y. 823), and this is true irrespective of the residence or domicile of the parents (Finlay v. Finlay, 240 N. Y. 429). As Judge Cardozo eloquently pointed out at pages 433-434 of the case just cited, the Supreme Court, as successor to the prerogative of the chancellor, acts as parens patriae to do what is best for the interest of the child. While everyone respects agreements voluntarily made, this situation does not present the aspects of the ordinary business contract. If, despite her agreement, the mother here finds that the child’s welfare is not best served by its temporary custody by its grandparents, her duty in the exercise of the patria potestas is to remedy the situation. Parents can never finally contract with respect to the custody of their children. Over these the court has jurisdiction, regardless of the agreement of the parties. (Matter of Hill [Hill], 199 Misc. 1035; Kunker v. Kunker, 230 App. Div. 641.) In People ex rel. Converse v. Derrick (146 Misc. 73, 77-78) the power of the court is graphically *326described as follows: “ The State of New York stands in relation of parens patriae to minor children in the State, and representing the State, it is the function of the Supreme Court to determine the custody of such minors, and such determination is to be based solely on the welfare of the minors. This power of the State and function of the Supreme Court evidently transcends legislative action and contract between individuals ” (citing eases).
There is ample evidence in the record to sustain a finding that there was a change of circumstances since the entry of the Puerto Eican judgment. The mother and two disinterested witnesses testified as to the boy’s behavior and attitude when he came to New York. The Special Term accordingly properly exercised its power as parens patriae, seeking solely what was best for the infant, and awarded custody to the mother. As the majority opinion points out, contrasted with his behavior on his arrival here, the boy, after residing for but a short time with his mother, brother and sister, became affectionate, respectful and well-behaved. As is also pointed out by the majority, the three children of this broken marriage are to be kept separated unless the determination of the Special Term is affirmed. We do not apprehend how this court can say, in the face of the findings of the trier of the facts, that any such arrangement is in the best interests of the child, merely because the mother submitted herself to the jurisdiction of the Puerto Eican court in what we must, in the absence of proof to the contrary, believe to be an honest effort to exercise her patria potestas for the best interests of the boy. Special Term “ was impressed with the dignity and courteous attitude of the respondent [mother].” As the Court of Appeals pointed out in reversing this court in People ex rel. Herzog v. Morgan (287 N. Y. 317, 322): “ The foregoing is the substance of the case. Our examination of it has been made with some anxiety because of the nature of the issue. The Special Term judge saw and heard the witnesses. He was face to face with the infants whose paramount interests were to be fostered. The factors that made his duty clear to bim can at this distance be seen by us only, as it were, through a glass darkly. Our conclusion is that in all human probability the first-made findings of the Special Term are attested by the weight of the evidence.”
It must be borne in mind that, while the father of the infant was a petitioner for the writ of habeas corpus, this is not a proceeding to determine whether the custody of the infant should be given to the mother or to the father. The petition asks that the child be delivered to appellant Moreno, an aftor*327ney, ‘ ‘ for the sole purpose of immediately delivering said infant to ” the paternal grandparents. The case is not, therefore, one where the court must determine whether the best interests of the child will be served by awarding custody to one parent or to the other, but whether such custody should be given to the mother or to relatives other than the father. In People ex rel. Portnoy v. Strasser (303 N. Y. 539, 542) Judge Desmond, writing for a unanimous court, had the following to say:
‘ ‘ Questions of custody are, generally, for the Supreme Court, in its discretion, and it is rarely that any such determination by it can raise any question of law for us. But that discretion is not an absolute or uncontrolled one (see Bunim v. Bunim, 298 N. Y. 391). No court can, for any but the gravest reasons, transfer a child from its natural parent to any other person (People ex rel. Boulware v. Martens, 232 App. Div. 258, affd. 258 N. Y. 534; People ex rel. Hausler v. Stegmeier, 240 App. Div. 901, affd. 264 N. Y. 483; Matter of Thorne, 240 N. Y. 444; Domestic Relations Law, § 81), since the right of a parent, under natural law, to establish a home and bring up children is a fundamental one and beyond the reach of any court (Meyer v. Nebraska, 262 U. S. 390, 399).
“ We do not have here one of those unhappily frequent cases where the contest is between parents and the courts must make the best available choice. Nor is this a case where a parent has left a child with relatives for a long time, then seeks it back (see Matter of Benning [Nigro], 303 N. Y. 775). Here a grandparent has assumed the very heavy burden of proving that a little girl should, by court order, be separated from her own and her mother’s home. To sustain that burden, relator must do more than prevail on a simple factual issue as to which are the better surroundings, or as to which party is better equipped to raise the child. Quoting a famous case: ‘ The dilemma, it would seem, is this: Shall she be ignored as an outcast or recognized as a mother? If she is not to be ignored, if the child is still her child, her rights must be regarded: Her right as a parent, not as a married woman, to the care and custody of the child becomes superior to that of all others unless it should be shown anew by the child’s relatives or custodians that she is an unfit person to exercise such guardianship ’ (Matter of Thorne, supra, pp. 449-450 * * *).” See, to like effect, People ex rel. Kropp v. Shepsky (305 N. Y. 465, 468-469).
Simply because it may be felt that the mother’s conduct with respect to litigation outside the State has not been all that *328could be desired, this court should not disregard the findings of the Special Term, the best interests of the child, and the well-settled and clearly enunciated law of this State with respect to the custody of minors.
The order, insofar as appealed from, should be affirmed.
Nolan, P. J., and Murphy, J., concur with Beldock, J.; Ughetta, J., dissents and votes to affirm the order, insofar as appealed from, in opinion, in which Wenzel, J., concurs.
Order, insofar as appealed from, reversed, on the law and the facts, without costs, writ sustained, and respondent directed to deliver the infant to appellant Moreno for delivery to the paternal grandparents. Findings of fact insofar as they may be inconsistent herewith are reversed and new findings are made as indicated herein. Settle order on notice.