Opinion
No. 39453.
04-22-1915
KOPCINSKI v. RICHARDSON.
William S. Darnell, of Camden, for petitioner. Howard L. Miller, of Camden, for defendant.
Petition by Michael Kopcinski for writ of habeas corpus against Emma M. Richardson. Writ denied.
William S. Darnell, of Camden, for petitioner. Howard L. Miller, of Camden, for defendant.
LEAMING, V. C. A petition has been filed In this court by Michael Kopcinski, praying that a writ of habeas corpus may issue to bring Mary Kopcinski, the daughter of petitioner, before this court, and that she may be released from the restraint of defendant, her present custodian, and be delivered to petitioner. Defendant has made a sworn return to the writ, and an answer to that return has been filed by petitioner. On the issues thus framed the child has been brought into court and the controversy has been heard by the parol examination and cross-examination of witnesses offered in behalf of the respective parties.
Little, if any, doubt can be said to exist touching the material facts.
Petitioner is the father of three children: John, now nine years of age; Mary, the subject of this controversy, now seven years of age; and Peter, now five years of age. The wife of petitioner, mother of these children, is insane, and is confined in the Camden County Insane Asylum at Blackwood.
Petitioner is a man of extremely dull comprehension, and at this time is without means or employment. When in health his earning capacity is about $8 or $9 per week. An accident has incapacitated him from labor, and he is at this time receiving $5 per week under the Employers' Compensation Act; this constitutes his entire present and prospective income until such time as he may again become physically able to work. He occupies a single room, in which he sleeps and prepares his meals.
Defendant is a practicing physician of Camden. Her home, her surroundings, and her personality may be briefly characterized as in extreme contrast with those of petitioner. Her custody of Mary, the subject of this controversy, arose in the following manner: About three years ago defendant was conducting a charitable institution known as the Mary J. Ball Home and Day Nursery, the institution being named in honor of defendant's deceased mother. The three children of petitioner were at that time placed in that institution, and petitioner paid $1 per week for board and care of each child. After the three children had been in the home for about three months Mary was taken by defendant from the public home to her own residence, and since that time Mary has been in defendant's personal custody at defendant's residence. The transfer of Mary's custody from the public home to defendant's private residence was undoubtedly with petitioner's acquiescence; whether with his express consent is a matter of dispute. Since that time the Mary J. Ball Home and Day Nursery has been incorporated.
During the 2 1/2 years that Mary has been under defendant's personal care as a member of her household defendant has acquired deep affection for the child and that affection is obviously reciprocal; defendant has, indeed, sought to legally adopt the child, but has not been permitted to do so. The child, in marked and almost startling contrast with her father, is bright and attractive to an extreme degree. No word or suggestion of criticism has been made touching defendant's treatment of the child or touching her fitness as custodian of the child; the grievance of petitioner appears to be based upon his claim that be has been denied the right to visit his child as freely as he has desired. This claim is denied by defendant.
It is established by the evidence that petitioner, as now circumstanced, is unable to assume personal custody of the child. It is, however, his purpose and wish to have the child placed in the Mary J. Ball Home and Day Nursery with his other two children. But the charge of that institution against petitioner will then be $3 per week which, if paid, will leave petitioner with but $2 per week for his own support; it is obviously impossible for petitioner to pay the necessary charges of that institution and live.
The situation thus presented, like most cases of this class, invokes the exercise of a higher degree of judgment upon the part of the court than is given the human intellect, as it measurably involved the consideration of an almost impenetrable future, for in cases of this class a court is required to regard the best interests of the child in connection with the strict legal rights of a father. The law controlling the subject has been so clearly defined by our Court of Errors and Appeals that it cannot be mistaken; it is stated by that court as follows:
"Doubtless it is the strict legal right of parents and those standing in loco parentis to have the custody of their infant children as against strangers. This right will control the judgment of the court, unless circumstances of weight and importance connected with the welfare of the child exist to overbear such strict legal right. The court will not regard the parental right as controlling, when to do so would imperil the personal safety, morals, health, or happiness of the child. In determining this delicate and often difficult judgment, the court looks at the character, * * * habits, and other surroundings of claimants. * * * In a controversy over its possession, its welfare will be the paramount consideration in controlling the discretion of the court. The strict right of the parent will be passed by, if a judgment in observance of such right would substitute ft worse for a better custodian." Richards v. Collins, 45 N. J. Eq. 283, 17 Atl. 831, 14 Am. St. Rep. 726.
It will thus be seen that a child cannot be lawfully regarded as a mere inanimate chattel which must be restored to the lawful owner in all circumstances. Like the parent, the child has rights, and the strict legal rights of a father, as such, can only be enforced in this court with proper regard to the best interests of the child. A father cannot be denied the custody of his child merely because another person desires the custody and is better able to provide for the present or future interests of the child; but when it is entirely clear that a father cannot properly provide for his child, the silent but overpowering appeal of the best interests of the child must be respected. In such case custody is not refused the parent because another has the legal right of custody, but because the best interests of the child deny to this court the right "to substitute a worse for a better custodian."
In this view of the law as applied to the facts of this case it is obviously impossible for this court to aid petitioner at this time. The prayer of his petition must be denied.
To avoid possible misunderstanding of the parties touching the effect of a denial of petitioner's prayer for custody, it may be well to call attention to the fact that the present adjudication relates alone to present conditions. Petitioner remains the father of thechild with all the rights of a father; he is merely denied the right to at this time be awarded custody of the child. As father of the child it is his right to retain and foster the love and esteem of his child and to enjoy her society at all reasonable times. It is, in like manner, the duty of defendant to teach the child to love and respect her father and to allow the father the fullest possible privileges for the enjoyment of the society of his child; any failure of this duty upon the part of defendant may be made the basis of future relief on his part. The mother of the child may recover from her unfortunate malady and the conditions of the father and mother of the child may, at some future time, determine the best interests of the child to be with them.
It seems immaterial whether this proceeding be regarded as a strict habeas corpus proceeding, or as a chancery proceeding appealing to the chancellor as the representative of the state and the ultimate guardian of all infants. The prayer of the petition is that the child may be released from the restraint of defendant, and also that the child be delivered to petitioner.
I am obliged to advise an order denying the prayer of the petition.