Opinion
02-13-1903
CARSON v. CARSON.
Winfield S. Angleman, for petitioner. Samuel S. Swackhamer, William R. Codington, and Francis J. Blatz, for respondent.
Habeas corpus for the possession of children on petition of James H. Carson against Sadie E. Carson. Denied.
Winfield S. Angleman, for petitioner.
Samuel S. Swackhamer, William R. Codington, and Francis J. Blatz, for respondent.
EMERY, V. C. The statutory provisions which govern this application are sections 9 and 12 of the "act concerning minors, their adoption, custody and maintenance." Revision 1902 (P. L. p. 264). The procedure is under section 12; the husband and wife living in a state of separation, and the minor children being brought before the chancellor on habeas corpus. The section requires the custody of the minors in such cases to be awarded as the chancellor may deem expedient. The principle or rule which is to control the chancellor's view of the "expediency" is the one stated in the ninth section, viz., that the rights of both parents, in the absence of misconduct, shall be held to be equal, and the happiness and welfare of the children shall determine the custody or possession. This was the rule which was especially enforceable in proceedings upon habeas corpus, by express provision of the act of March 26, 1896 (P. L. p. 171). This was also the rule under the provisions of the divorce act, relating to the custody of children. Revision 1874 (2 Gen. St. p. 1271, § 27). The statutory declaration of the rule controlling custody was first made in 1871 (P. L. 1871, p. 5, § 6), and did not introduce a new rule for the courts of equity, but was merely a declaration of legislative approval of the general rule previously adopted by the courts of equity in proceedings upon habeas corpus or otherwise. English v. English, 32 N.J.Eq. 738, 743 (Err. & App. 1880). The provisions of these acts were consolidated in the act of 1892, and both acts were thereupon repealed (P. L. 1902, p. 270). In relation to children under the age of seven years, the statutes, previous to the act of 1890, had express provisions giving to the mother of the children preferential rights. P. L. 1860, p. 437; P. L. 1861, p. 458; P. L. 1892, p. 158. These prior acts were repealed by the act of 1896 and the general repealer of 1892 (P. I. 1902, p. 270).
Considering the welfare and happiness of the children as the object to be secured by the decree or order in this case, I reach the conclusion, upon all the evidence, that the custody of the children should, for the present, be awarded to the mother. Petitioner's counsel claims that the wife was guilty of misconduct in leaving her home with the children, and that therefore, under the statute of 1902, he is entitled to the custody of the children, as his common-law right. To this claim there are two answers: First. The welfare of the children is the object of the statute, and the provision as to misconduct of either party was intended to give a preference to the innocent party, and to impose upon the party charged with or found guilty of misconduct under the statute the burden of overcoming this preference, and showing that, notwithstanding the misconduct and the inequality of rights, still the welfare of the children requires an award of the custody to the party guilty. Second. The character of the misconduct charged in this case is not such as to affect the mother's love and affection for her children, but arises entirely from differences between the husband and wife, as to which each may be in some fault. I do not now decide this point, as it is not necessary. This was the situation in the English Case, where both parents were in fault, and the wife remained separate from her husband without legal justification, but was nevertheless awarded the custody of the children. English v. English, 32 N.J.Eq. 738, 747 (Err. & App. 1880). Misconduct, in this statute, means such conduct as to deprive the spouse of a moral right to the custody of his or her children. Id., 31 N.J.Eq. 543, 547 (Runyon, Ch., 1879), affirmed on this point in 32 N.J.Eq. 747. In the present case the weight of evidence shows that the wife left the house because she was ordered out by the husband, and, even if it should be considered that her apprehensions as to her safety in living with her husband are not well founded or are exaggerated, the husband has made no effort to secure her return, nor does he now ask or seem to desire it. Her remaining away, under the circumstances, cannot be considered as such "misconduct" as to deprive her of the custody of herchildren, where it is best for their welfare. They are still of tender years, and need a mother's care and oversight. The petitioner could not himself take care of them, as he is engaged from home in his daily work, which he pursues industriously. No suggestion has been made as to how he proposes to supply the mother's care and attention which his children need, and I think I should be taking a great risk with the happiness and welfare of these children if I deprived their mother of their custody.
The prayer of the petition will therefore be denied, and the children will be remanded to the custody of the mother. Order as to access of the husband to the children is reserved for further consideration on application. An order to this effect will be advised on the day to which the hearing was adjourned, and the production of the children before me on that day will not be necessary.