Summary
In Bierck v. Bierck, 123 A. 537 (Ch. 1923), not officially reported, the late Vice-Chancellor Leaming said: "A court always determines that, whenever custody is awarded to a parent, the other parent shall not only be privileged to see the children at all times, but shall be encouraged by the parent custodian in seeing them as freely, as fully, as often, and as long as possible, and in a manner best suited to the encouragement of mutual affection."
Summary of this case from In re JacksonOpinion
No. 50/734.
12-21-1923
BIERCK v. BIERCK.
Wescott & Weaver, of Camden, for petitioner. C. L. Cole, of Atlantic City, for respondent
Action for divorce by Harold A. Bierck against Mabel F. Bierck. Hearing on order to show cause for custody of children. Decree, for defendant.
Wescott & Weaver, of Camden, for petitioner.
C. L. Cole, of Atlantic City, for respondent
LEAMING, V. C. It is probably beyond the power of human judgment to determine with entire certainty what order should be made herein having for its primary purpose the best interests of the children. While the rights of the parents, as such, are not to be overlooked, the first and essential care of a court is the welfare of the infants.
In cases of this nature, where parents are separated and estranged, I have long entertained the view that the greatest benefit a court can bestow upon children is not so much to be found in determining which parent shall enjoy their physical custody as it is in insuring that the children shall not only retain the love of both parents, but shall be at all times and constantly deeply imbued with love and respect for both parents. There is in cases of this nature a well-known tendency on the part of a parent having the physical custody of children of the marriage to measurably restrain the natural and proper affection of the children for the absent parent. This is done either intentionally or otherwise by speaking disparagingly of the absent parent in the presence of the children, or in many other ways; whereas the first essential requisite of a fit custodian and the primary duty of every custodian is to cause the children to love and respect the absent parent, irrespective of personal feelings or opinions in that matter. This duty flows from the well-recognized fact that a child's best interests always lie in loving and being loved by both parents, whether such parents may be found worthy or unworthy. It is for these reasons that a court always determines that, whenever custody is awarded to a parent, the other parent shall not only be privileged to see the children at all times, but shall be encouraged by the parent custodian in seeing them as freely, as fully, as often, and as long as possible, and in a manner best suited to the encouragement of mutual affection. So, too, when award of custody is made, it is always made upon a distinct and clear understanding upon the part of the custodian that any single instance of the custodian in the slightest degree poisoning the mind of a child against the absent parent, or failure to encourage a child to love the absent parent, or failure to encourage visitations and friendly intercourse between the absent parent and a child, shall be deemed to render the custodian an unfit one, and a probable cause for revocation of the order of custody. These suggestions, well known to the bar, are here made for the benefit of the respective parents in this case; this case differs in nothing from similar cases of this nature.
In this case it is clear that the custody of Constance should remain permanently with her mother. Her sex and age impel this. So, too, should the two children remain together as a rule; any separation should be temporary at most. But no reason exists why Harold, Jr., should not visit his father at suitable times, either at his father's home or at his grandfather's home, should petitioner be there; but not in the absence of petitioner. It is the intercourse between parent and child that is to be encouraged.
Let the children remain together with their mother; but, should petitioner desire Harold, Jr., for a time during Christmas or Easter school holidays, there can exist no good reason to deny that privilege; indeed, a visitation of that nature should be encouraged. Any disposition upon the part of Harold, Jr., to resist such a visit should be looked upon as a matter calling for investigation. The order to be at this time made need not contemplate the future beyond the period above suggested. Orders of this nature may be extended or terminated at any time on new enlightenment.