Opinion
No. 3048.
Decided February 7, 1939.
If the mother of a minor is not an unfit custodian she is entitled to custody by force of P. L., c. 290, s. 4, notwithstanding the child's welfare would be better subserved if under another's custody.
The father of an illegitimate child has no right to its custody.
Where evidence relevant to one issue but irrelevant to another is offered to establish only the latter, the evidence should be excluded.
In such case, in view of the relevancy of the evidence on the former issue and the omission to offer it for that purpose, a new trial on the ground of accident, mistake or misfortune should be granted.
PETITION, to obtain the custody of the plaintiff's minor child. On informal hearing the court found her "not unsuitable" to have the custody, excluded evidence that "the child would be better off and that its welfare would be best promoted by its remaining" with the defendants, and granted the petition. To the exclusion of the evidence offered and to the order awarding custody to the mother, the defendants excepted. Transferred by Johnston, J.
Ovilla J. Gregoire, by brief, for the plaintiff.
Keefe Varney, by brief, for the defendants.
If the mother is not an unfit custodian, she is entitled to the custody, by force of the statute (P. L., c. 290, s. 4). Leclerc v. Leclerc, 85 N.H. 121, 125; Brown v. Jewell, 86 N.H. 190; Sheehy v. Sheehy, 88 N.H. 223, 228. The court has found the mother's fitness, but the defendants' brief alleges an offer of evidence tending to show her unfitness. It is not shown by the record, and it is not clear, whether this evidence was excluded. Assuming its exclusion, the exclusion was proper if it was offered only to show that the child's welfare would be better subserved by the defendants' custody over her. But in view of its relevancy on the issue of the mother's fitness, a finding, upon application for a new trial, of accident, mistake and misfortune in not also offering it for that purpose, would require the grant of the application. Barclay v. Club, 89 N.H. 87 and cases cited.
The rights of the child's father are not involved. If, as the defendants' brief states, the child is illegitimate, he has none.
As the case stands, the order is
Exceptions overruled.