(dissenting). The contest here is between the father and the maternal grandparent of the boy. While the Special Term found in his memorandum “ that the conduct of the petitioner amounted to an abandonment ”, the order dismissing the father’s writ recites nothing of abandonment by or unfitness of the father but only that the court had been “ satisfied that the best interests of the child dictate that he remain in the custody of the respondent ”. In other words, the Special Term erroneously took the position that the matter might be decided almost solely as a matter of discretion. The majority in this court treat this order appealed from as one “ discretionary in nature.” The prevailing opinion sets out the basic questions as being two in number, viz: (1) whether the father has abandoned his right to custody and (2) the welfare of the infant. Again, as at Special Term, the fitness or unfitness of the father is not considered to be a “ basic ” question. However, in the second new finding, this court refers to the father’s “irresponsible conduct ” over a period of 11 years and finds that such conduct constitutes unfitness.
We are unable to agree that the matter is essentially one of discretion for the court. In the absence of either an unquestionable and voluntary abandonment of the right to custody or in the absence of proven present unfitness of the father, the area of discretion in the court is extremely limited. It is familiar law that as between parents alone, the child’s welfare is the first concern of the court. As between parents and nonparents such rule is not paramount. “ The mother or father has a right to the care and custody of a child, superior to that of all others, unless he or she has abandoned that right or is proved unfit to assume the duties and privileges of parenthood.” (People ex rel. Kropp v. Shepsky, 305 N. Y. 465, 468.)
*429We think that the dismissal of the writ on the ground of abandonment on the father’s part cannot be sustained upon the evidence. After the mother’s death, the father left the child with the grandmother and went away to work. Thereafter he visited the child. He gave the grandmother money. Later and in the years immediately preceding this proceeding, the boy was with the father in Newark, New Jersey in the summertime. A finding of abandonment, in our opinion, is against the weight of evidence. This court said in Matter of Bistany (209 App. Div. 286, 288, affd. 239 N. Y. 19), that there must be “ a considerable degree of clearness and certainty in the proof of the renunciation ” to find an abandonment. Such clearness and certainty is lacking here.
Nor may the order appealed from be upheld because of the unfitness of the father. There is no proof of unfitness in the record nor did the Special Term find any. The majority opinion states that there is no such testimony, “ apart from his demonstrated irresponsibility as a parent ”. It may be that this father should have contributed a greater amount of money to the grandmother for the support of the child. It may be that he should have visited the child more frequently, and kept the child with him in Newark for longer periods of time. However, assuming a certain laxness on the father’s part in the respects mentioned, certainly that is not proof of present unfitness. Judge Fuld, in the Shepsky case (supra, pp. 470-471) said: ‘ ‘ Here, no finding of present or prospective unfitness had been made against the mother. * * * we must recognize, in assessing her fitness for the duties of motherhood, that the courts may not weigh too heavily indiscretions of long ago.” If in that case, custody was properly awarded to the unmarried mother of the child, we think in the instant case the inattention of this father at times should be overlooked, in the absence of proof of moral unfitness.
The order should be reversed and custody awarded to the petitioner.
All concur, except Vaughan and Kimball, JJ., who dissent and vote for reversal and to sustain the writ, in an opinion by Kimball, J., in which Vaughan, J., concurs. Present — McCubn, P. J., Vaughan, Kimball, Williams and Bastow, JJ.
Order affirmed, without costs of this appeal to either party. New findings of fact made.