Opinion
09-30-1920
Ex parte KIRSCHNER.
John M. Ward, of Paterson, for petitioner. John C. Barbour, of Passaic, for respondent.
Habeas corpus application by George Kirschner for the custody of Evelyn L. Kirschner. Custody of child awarded petitioner.
John M. Ward, of Paterson, for petitioner.
John C. Barbour, of Passaic, for respondent.
STEVENSON, V. C. This litigation, initiated by a writ of habeas corpus, is not directed toward liberating the child Evelyn from unlawful imprisonment. The jurisdiction which is invoked is the "general jurisdiction over the custody of the person of infants which the Chancellor exercises as parens patræ." In re Barry, 61 N. J. Eq. 135, 137, 47 Atl. 1052, 1053.
My conclusion is that the parents have not transferred or abandoned their right to the custody of their child, and that such custody must be awarded to them.
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3. In cases where the parent or parents of an infant child of tender years seek to recover from a stranger the custody of their child in the stranger's possession and control, the following principles I think are established in New Jersey by a series of reported cases and many unreported cases:
(1) There is an important distinction between (a) the parents' right of custody and (b) the parents' duty with respect to support. The two things are wide apart. The parental right may be transferred or abandoned. Except by adoption proceedings the parental duty is untransferable. Wright v. Leupp, 70 N. J. Eq. 130, 134, 62 Atl. 464; Ousset v. Euvrard, 52 Atl. 1110, 1111.
(2) The Court of Chancery in habeas corpus proceedings may adjudicate that the parental right has been transferred or abandoned and award the custody of the infant to the respondent, a stranger in blood. The controlling consideration in such case relates to the interests of the child alone; the former parental right is disregarded.
(3) Laying out of view statutory proceedings and the rescue of children from conditions in which they are subjected to starvation or immoral influences, our law gives no court the power to award the custody of a child away from its parents or parent, unless the parental right to custody has been transferred or abandoned. The child of a laborer may be lost and be taken into a home of refinement and luxury, where it is accepted by persons who are willing to adopt it and give it education and fortune. The laborer upon the discovery of his child may regain its custody by a writ of habeas corpus without regard to the child's wishes, and bring it up in the station in life in which it was born. No court has power to thwart and disregard the unabandoned, untransferred parental right, although it may be evident that the best interests of the infant would be promoted by giving its custody to the stranger.
(4) Where in habeas corpus proceedings custody has been awarded to a stranger in possession of the child on the ground of transfer or abandonment of the parental right, the adjudication is not necessarilyfinal; it does not affect the untransferable though dormant parental duty. Richards v. Collins, 45 N. J. Eq. 283, 289, 17 Atl. 831, 14 Am. St. Rep. 726. A year later the outsider to whom custody was awarded may be reduced to poverty while the parent may acquire a large fortune, and establish a luxurious home, where all the conditions would make for the best possible nurture and education of the child. Upon a second writ of habeas corpus, or supplementary proceedings under the first writ, custody may be awarded to the parent—not for the enforcement of the transferred or abandoned parental right, but for the enforcement of the parental duty. The parent incidentally secures the enjoyment growing out of the custody of his child, the right to which he transferred or abandoned, but this is a mere incident growing out of the enforcement of the parental duty.
(5) It may be said with accuracy, I think, that the power of the state through its courts to take a child from its parent and commit its custody to a stranger rests essentially on the fact of a transfer or abandonment by the parent of his parental right. When such transfer or abandonment has been found by the court, the sole question is whether the interests of the child will be promoted, under then present conditions, by awarding custody to the parent so as to subject the parent to the performance of his parental duty or by awarding custody to the stranger.
(6) The parental right is displaced only by a transfer or an abandonment. The court must find one of these facts, or it has no right to consider the question which home will afford the greater advantage to the child. The millionaire cannot steal the child of the humble laborer and maintain its custody because the court finds that the interests of the child would be promoted by disregarding the parental right.
(7) Let me make it emphatic that all the foregoing propositions relate to cases where the parents' home is a suitable home for the proper bringing up of the child according to the parents' station in life. We are not dealing with cases where courts refuse on habeas corpus proceedings to aid a parent in recovering possession of his child when the child will be subjected to immoral influences in the parents' home. Nor are we dealing with statutory proceedings where the parent becomes a pauper, or with cases provided for by section 14 of the Minor's Act (2 Comp. St. p. 2811, § 26). We are dealing with a case where if the child had remained in the custody of its parent or parents no court or other agent of the state would have the power to take the custody of the child from such parent or parents and vest such custody in a stranger or an institution. The fact that a little child in some way has passed into the custody of a stranger and become weaned from its parents gives the court no power upon a writ of habeas corpus, sued out by the parent, to adjudge that the interests of the child will be promoted by leaving it with the stranger, unless it is shown that the custody of the child has been transferred or abandoned by the parent.
(8) Where the stranger in possession of the child asks the court to award custody to him on the ground that he can and will give the child advantages of education, etc., which the parent could not possibly provide, he must, in my judgment, make clear proof against the parental right of a transfer or abandonment. The doubt should be solved in favor of the parental right, especially where the home of the parent is comfortable and accords with the parents' fortune and station in life.
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5. The state of New Jersey repudiates the theory that it (the state) should control the custody which parents by natural right have of their children, and dispose of children according to the view which officials of the state take as to what is for the best interests of the children. Parental right is sacred in the eye of our law, and the home is an institution which lies at the basis of our civilization. In all these custody cases, where the well-being of a little child is involved, parental right should never be disregarded unless that right has been surrendered. It is a right which should be touched with an extremely cautious and gentle hand. Apart from the instances, for the most part under statutes, which have been excluded from consideration in this case, the court must enforce the parental right in habeas corpus proceedings in all cases where that right has not been proved to have been surrendered, transferred, or abandoned.
6. An order will be made awarding custody of the child, Evelyn, to the petitioner.