In cases involving the custody of minor children, whether it be by divorce or separation proceeding, by habeas corpus, petition to the chancellor, or other equitable proceeding, the court, as a department of the state, in thus exercising its inherent power and jurisdiction in equity, is spoken of as acting in the capacity of parens patriae. In re Cooke, 114 Vt. 177, 41 A.2d 177, 180; New York Foundling Hospital v. Gatti, 203 U.S. 429, 439, 27 S. Ct. 53, 55, 51 L. Ed. 254; Durfee v. Durfee, 194 Misc. 594, 87 N.Y.S.2d 275; Ex parte Bowers, 78 Or. 390, 153 P. 412, 413; Smith v. Smith, Tenn., 220 S.W.2d 627, 630; Finlay v. Finlay, 240 N.Y. 429, 435, 148 N.E. 624, 626, 40 A.L.R. 937; In re Pratt, 219 Minn. 414, 18 N.W.2d 147, 153; Bartlett v. Bartlett, 175 Or. 215, 152 P.2d 402, 406; Ex parte Flynn, 87 N.J. Eq. 413, 100 A. 861, 862; Buckley v. Perrine, 54 N.J. Eq. 285, 34 A. 1054; People ex rel. Herzog v. Morgan, 287 N.Y. 317, 39 N.E.2d 255, 256; In re Bopp, 58 N.Y.S.2d 190; McKamey v. State ex rel. Winston, Tenn., 222 S.W.2d 26, 27; White v. White, 214 Ind. 405, 15 N.E.2d 86, 88; Scott v. Scott, Ind., 86 N.E.2d 533, 536; Boone v. Boone, 80 U.S. App. D.C. 152, 150 F.2d 153, 155; Langan v. Langan, 80 U.S. App. D.C. 189, 150 F.2d 979, 980; McMillin v. McMillin, 114 Colo. 247, 158 P.2d 444, 448, 160 A.L.R. 396; Crowell v. Crowell, 184 Or. 467, 198 P.2d 992, 994. There is no dissent among the authorities or decisions to the doctrine of parens patriae as above stated.
And it was held in Cowls v. Cowls, 3 Gilman (Ill.) 435, that such statute as we have confers no new authority or jurisdiction upon the chancery court. Where the question is the right to the permanent custody of children, the chancellor may, by virtue of his inherent jurisdiction, as public guardian of infants, fix their status in habeas corpus proceeding. Buckley v. Perrine, 54 N.J. Eq. 285 ( 34 A. 1054). So, then, though the divorce court has no power to settle custody, if all there is is a dismissed petition for divorce, it is still true that the district court of Iowa has other functions than determining divorce suits, and, as a district court, has inherent power to fix the permanent custody of infants."
"And it was held in Cowls v. Cowls, 3 Gilman (Ill.) 435, that such statute as we have [now 598.14] confers no new authority or jurisdiction upon the chancery court. Where the question is the right to the permanent custody of children, the chancellor may, by virtue of his inherent jurisdiction, as public guardian of infants, fix their status in habeas corpus proceeding. Buckley v. Perrine, 54 N.J. Eq. 285 (34 A. 1054). So, then, though the divorce court has no power to settle custody, if all there is is a dismissed petition for divorce, it is still true that the district court of Iowa has other functions than determining divorce suits, and, as a district court, has inherent power to fix the permanent custody of infants.
And it was held in Cowls v. Cowls, 3 Gilman (Ill.) 435, that such statute as we have confers no new authority or jurisdiction upon the chancery court. Where the question is the right to the permanent custody of children, the chancellor may, by virtue of his inherent jurisdiction, as public guardian of infants, fix their status in habeas corpus proceeding. Buckley v. Perrine, 54 N.J. Eq. 285 ( 34 A. 1054). So, then, though the divorce court has no power to settle custody, if all there is is a dismissed petition for divorce, it is still true that the district court of Iowa has other functions than determining divorce suits, and, as a district court, has inherent power to fix the permanent custody of infants. * * *
Its authority is so broad that the permanent custody may be fixed even in disregard of the legal rights of parents where the welfare of children requires it. Richards v. Collins, 45 N.J. Eq. 283; Kopcinski v. Richardson, 94 Atl. Rep. 32; Buckley v. Perrine, 54 N.J. Eq. 285;Cole v. Cole, 89 N.J. Eq. 381."
The Habeas Corpus act of March 7th, 1874, is incorporated in the 1 Rev. Stat. 1937 2:82 p. 381, c. The jurisdiction of this court relative to issuing writs of habeas corpus is set forth in In re Thompson, 85 N.J. Eq. 221,c.; Buckley v. Perrine, 54 N.J. Eq. 285; State, Baird v. Baird, 19 N.J. Eq. 481. These cases point out that the court of chancery, acting through a vice-chancellor, has the same jurisdiction as if the proceeding was before a judge of a court of law.
P.L. 1889 p.426; 2 Comp. Stat. p. 2640. Mr. Justice Dixon, for this court, said in Buckley v. Perrine, 55 N.J. Eq. 514, that the power was the same power conferred upon law judges. Certainly the legislature could not confer the power to issue prerogative writs upon one not a civil officer of the government.
At the time of transfer defendant was a resident and in actual occupation of the premises, yet no notice was given him of the transfer or of any proceeding in this court until he learned of the proposed sale. The principles applicable here seem to be those laid down in Buckley v. Perrine, 54 N.J. Eq. 285 (at p. 297), as follows: "For aught that appears to the contrary, the respondents were in utter ignorance of the order of reference.
Besides the jurisdiction conferred upon the court of chancery by statute, it has authority under its general equity powers to deal with the custody of infants, which authority is in no way dependent upon statute. Its authority is so broad that the permanent custody may be fixed even in disregard of the legal rights of parents where the welfare of children requires it. Richards v. Collins, 45 N.J. Eq. 283; Kopcinski v. Richardson, 94 Atl. Rep. 32; Buckley v. Perrine, 54 N.J. Eq. 285;Cole v. Cole, 89 N.J. Eq. 381. Petitioner relies upon Dixon v. Dixon, 76 N.J. Eq. 364. Prior to the proceedings considered in that case, a father, living separately from the mother, had petitioned for the custody of his children for the whole or part of the time, the children and the mother living in this state.
Petitioner is not entitled to a report of default under Rule 266A, unless defendant has defaulted — and defendant is not in default unless the notice of hearing has been served. It has been suggested that where the parties consent to an order of designation, such consent operates as a waiver of notice of hearing; and that the determination of the court of errors and appeals in Buckley v. Perrine, 55 N.J. Eq. 514 (at p. 518) is an adjudication to that effect. No so.