Opinion
05-19-1903
In re WILSON.
Jacob C. Hendrickson, for petitioner. Eckard P. Budd, for respondent.
(Syllabus by the Court.)
In the matter of the application of Alexander Wilson for the custody of his child. Petition granted.
Jacob C. Hendrickson, for petitioner.
Eckard P. Budd, for respondent.
GREY, V. C. (orally). The principles which must control the disposition of this case appear to me to be so clearly indicated that the matter may be settled without hearing from the petitioner's counsel in reply to the argument of the respondent's counsel, who has, I think, presented all that can be said against the granting of the petitioner's prayer. The petition asks for the permanent custody of the child Marguarite Wilson, the daughter of Alexander Wilson and Maggie Wilson, his wife. The marriage of the parents, the legitimate birth of the child, and her age (a little over seven years) are all undisputed. The child herself is here, brought by the writ of habeas corpus issued in aid of the petition. The court has had the opportunity of personal inspection of the child. She is in the custody of a maternal aunt, the respondent in this matter.
There is some dispute as to the terms under which the child came into the custody of the respondent, but this dispute is of no substantial significance. The respondent claims that her custody of the child was originally consented to by the little one's mother, who was then living, and that subsequently, after some persuasion, it was assented to by the father, after the death of the mother, and that this custody, so assented to by the father, was to be of indefinite existence; no time being mentionedwhen the child should be returned. The child, when less than two years old, was taken from California with the assent of the father, and brought to New Jersey, by the defendant. This is undisputed. The father testifies his consent was for a six months' visit, in the expectation that at the end of that time she should be returned to him. The father lived in Oakland, Cal., and the home of the respondent, Mrs. Ball, was in Mt. Holly, N. J., where she had the child. The father's business required his continued presence in California. He was working for a salary, and could not readily arrange personally to come across the continent to bring his child home. Mrs. Ball knew all these circumstances, for she had lived over a year in his household.
Mrs. Ball and her daughter, and Mrs. Slack, her mother, who was an elderly lady, had become intensely fond of the little girl. The correspondence carried on between the parties (shown by numerous letters written from the Mt. Holly home to the father) proves indisputably that Mrs. Ball recognized the father's right to have his child, and begged him to postpone its exercise because of the grief and, indeed, danger to the health, of the grandmother, Mrs. Slack, which would ensue if the child were removed from her household. The father's letters in reply discuss this situation and regret it Nowhere in the correspondence is there any assertion by any one in the Mt. Lolly household of a right permanently to retain the child, nor in the father's letter is there any indication that he had any doubt of his right to have her whenever he chose to enforce it. This correspondence can be interpreted in no other way than as a clear admission that there never had been any arrangement that Mrs. Ball should have the permanent custody of the child, and that the father had a legal right to have his child delivered to him at any time. They also as conclusively show that the Mt. Holly family, Mrs. Ball and her daughter, and Mrs. Slack, her mother, had become so affectionately attached to the child that they were quite unwilling to give her up at all. The correspondence is full of explanations and excuses for detaining the child, but running through all the letters are plain indications that the controlling reasons which influenced these Mt. Holly ladies to retain the custody of this little child was the intense affection which they had for her. In order to gratify that feeling, they were willing to refuse to recognize the rights of the father under any circumstances. They wanted to postpone a struggle, if possible, but they meant at all events to keep her.
Mr. Wilson in the year 1898 sent a Mrs. Closson to Mrs. Ball, directing her to give the child to Mrs. Closson, so that she might be brought to his home in California. Mrs. Bail refused to give the child to Mrs. Closson. She did not say she had been given the permanent custody of the child, nor did she set up any right to refuse to deliver her, but excused herself on account of the distress which the child's removal would cause the grandmother, Mrs. Slack. Again, a year or two later, Mr. Wilson sent for the child by his brother, Dr. Wilson, and his wife. Again Mrs. Ball refused to send her, for reasons affecting the personal comfort of the child in taking so long a journey in charge of persons with whom she had so slight an acquaintance. No right to her permanent custody was claimed by Mrs. Ball. Later on further correspondence was carried on through counsel retained by the father in Mt. Holly, who personally conferred with Mrs. Ball and demanded the delivery of the child. Now, for the first time, appeared any assertion on the part of Mrs. Ball of any legal right to the permanent custody of the child. Mrs. Ball declined to give her up, or to arrange any plan by which she could be sent to her father, insisting that he was bound personally to come from California to New Jersey to get her, and declaring that, if he did, he would not get her without a fight for her custody. The petition in this case was thereupon filed, and Mrs. Ball's defense to it is the contest which she foretold The resistance to the delivery of this child to her father, her only living parent, is put upon several grounds. It is alleged that the history of the child's ancestry indicates a liability to tuberculosis, and that Oakland as a neighborhood, and the particular location of the father's house there and his household arrangements, are all of them such as will probably develop this latent tendency. The evidence to establish the existence of these unfavorable conditions is of itself in no way conclusive. It is energetically disputed by the testimony submitted on the part of the petitioner. If it were shown to be true that the environment of Mr. Wilson's present residence is unfavorable to the health of his child, I cannot assume that Mr. Wilson will continue to live under these unhealthy conditions, and make this assumption the basis of my judgment for taking this child away from him. To maintain such a claim there must be a showing by the clear weight of the evidence that the delivery of the child to the father will place her under conditions in which the injury to her health is reasonably certain. That existing circumstances may possibly have that effect is of little weight, when those circumstances may be changed at any time.
It is also urged that the father, Mr. Wilson, is an unfit person to have the custody of this little girl, because it is alleged he is of a disposition to treat her cruelly, subjecting her to danger of physical injury. The evidence on this point is that of Mrs. Ball and her daughter, who some five years or more ago resided in Mr. Wilson's household at Oakland for nearly two years. They testify that he whipped his little children to excess, andon a number of occasions finished the punishment by kicking them. These statements are flatly contradicted by Mr. Wilson. His present wife, who has been married to him and lived with him and his other children for the past ten months, testifies that he treats all his children with tenderness and consideration.
It is to be noted, in examining these contradicting statements, that Mrs. Ball and her (laughter testify with relation to a condition of affairs which they say existed in Mr. Wilson's household some five years ago, when they visited him. This period antedated the taking of the little girl to Mt. Holly by Mrs. Ball, so that all the letters sent from the Mt. Holly household to Mr. Wilson in excuse for the refusals to return the child were written when Mrs. Ball and her daughter had full knowledge of these alleged cruelties on the part of Mr. Wilson toward his children. Those letters addressed Mr. Wilson in terms of the utmost respect. They are even affectionate in their terms, speaking to him as a person who, by reason of his family connection with the writers, was entitled to and received their kindly consideration. The correspondence shows the uttermost strain in the effect to find excuses for the retention of the child, but nothing indicates that the writers have in any way lost or lessened their respect for Mr. Wilson, or that they hesitated to return the child to him because of any feared danger by reason of his harsh or cruel treatment to his children. Nor is there in any of the letters any suggestion of the unhealthfulness of the climate, or the possible unhappiness of the child if given into the custody of her father. The only excuses found and stated in the correspondence are the apprehended grief of the grandmother, if deprived of the child, and the unwisdom at her tender age of giving her into the custody of strangers to take charge of her in traveling so great a distance.
I am constrained to believe that, if in fact the conditions here urged as reasons for depriving this father of the custody of his child had ever existed to the extent presently insisted upon. Mrs. Ball and her daughter, who conducted this correspondence, would certainly have said something which indicated their knowledge of these conditions. It is not alleged or claimed that Mr. Wilson was habitually cruel to his children. Even as stated by Mrs. Ball herself, the alleged cruelty was always associated with the administration of punishment. She does not testify that the punishment itself was unjust. She admits that the children deserved punishment when their father administered it, but she says that in administering it he went to an excess. This is wholly a matter of opinion. It is hardly possible to justify kicking a child as a means of punishment, yet it cannot be said that the testimony submitted by Mrs. Ball and her daughter, even if true, shows any such degree of cruelty as threatens the future life, health, or permanent happiness of Mr. Wilson's children. If these statements be accepted as accurate, they apply to a condition alleged to have existed six years ago. No proof is submitted to show that at the present time Mr. Wilson administers any excessive punishment to his children. All the proof that is submitted is to the contrary. It is but fair to the petitioner to say that, considering the whole of the testimony applicable to this phase of the case, the allegation that he at any time dealt cruelly with his children is not sustained.
It is also contended that the happiness of the child herself must be considered, and that her long association with Mrs. Ball, who has shown the most motherly care for her, and her ignorance of the personality and character of her father, make it certain that she will suffer seriously if separated from Mrs. Ball and given to the petitioner. This is a most distressing situation. There can be no question of the tenderness of Mrs. Ball's affection for this child. Her presence here in this litigation, though mistaken in its assertion of her rights, proved the depth of her love for the child. Avery touching appeal is made, based on the mutual love of Mrs. Ball and the little girl for each other. A court must, however, award its judgments in accordance with legal obligations, and not personal feelings. Mrs. Ball is under no legal obligation to maintain this child, not the slightest. The child might be made a public charge, so far as Mrs. Ball's relation to her is concerned. The permanent happiness of a child under eight years of age is not likely to be affected by a change of custody from one person who loves her to another who will naturally treat her with kindly consideration until association shall have developed her affection for her new caretaker. The separation will undoubtedly be at first a grievous thing, but at the child's impressible age adjustment to new associations is readily accomplished. It would be a happy condition indeed if matters could be so arranged that the affection which Mrs. Ball has for this child shall not be lost to her. The law requires that the child be given to the father, but those who are interested in her would do wisely if they preserve for her all the loving consideration which has heretofore surrounded and cared for her.
It has been said that the future welfare of the child would be best secured by refusing custody to her father. This view is the same that was urged in the case of Griffin v. Gascoigne, 60 N. J. Eq. 259, 47 Atl. 26. In that case the court was invited, as it is in this, to disregard the Immediate family relation, and award the custody of the child to that one of litigants who would and could deal with it most beneficially for its future welfare. That argument was rejected. I quote from that opinion: "Such a view would take his child from the poor man, and give it to his richer neighbor, who might offerto adopt it. It would stand as a temptation to the breaking of family ties whenever the attractiveness of a child might tempt one who could secure it a higher station in life to make the struggle for its possession. In the rightful adjustment of the family relation, the child should occupy that station in life into which he is born. If his father is poor, he must share his poverty. If the father is cross and ill-tempered, and is occasionally inebriated, these are distressful characteristics, which may make the child's life less happy; but, until it is shown that they are' of such force and importance as to endanger the child's welfare in that place in life into which it has pleased God to call him, their existence constitutes no reason to deprive the father of the possession of his child. The true view is that the custody of the child should remain with his parents, irrespective of greater benefits which the custody of another might secure for him, unless the character of the parents and the environment to which the child would, in their charge, be subjected, are such as actually to endanger his life, health, morals, or permanent happiness." If Mrs. Ball had asked the advice of her lawyer, at the time when the petitioner, in 1898 or 1899, sent Mrs. Closson for the child, the distress which must attend upon the present separation would have been prevented. She would then in all probability have been advised that she had no legal right to detain the child. She would thereafter, under such advice, have trained the child to the expectation of her return to her father as a future happiness in store for her. Her own affection for the child would have been less absorbing, and the suffering necessarily accompanying the present separation would have been avoided.
Upon the whole case there is no showing of any circumstances which would justify the denial to the father of the custody of his child. I will therefore make an order that the child must be given to the permanent keeping of the petitioner. This order must be executed here and now, unless the petitioner assents to a different disposition.