Derickson v. Derickson

1 How. Pr. (n.s.) 21 | N.Y. Sur. Ct. | 1886

The Surrogate.

The grandmother of these infants, with whom they are now residing, has applied to be appointed their guardian. Their father is dead. Their mother is not herself an applicant for letters of guardianship, but opposes the appointment of the grandmother, except upon the condition that she herself shall be afforded an opportunity from time to time of visiting her children. To this restriction the petitioner refuses her assent, and she disputes the authority of the Surrogate to impose any such condition upon the issuance of letters.

The power of the Court of Chancery to award the custody of an infant to one person, and to allow access to another under such limitations as it chose to impose, has been often asserted (Macpherson on Infants, 120,121; Ex parte Ralston, 1 R. M. Charlt., 119). “ The court,” says Schouler (Dom. Rel., § 332), “will judge as to what the interests of the child require, according to the circumstances of each case, and will make orders accordingly, both as to the actual custody and as to the persons who may have access to the child.”

The authority conferred upon Surrogates by § 2821 of the Code of Civil Procedure is in this regard as extensive as that which was formerly exercisable by the Chancellor. I am clear that, in a proper case, I may give direction as to access.

The petitioner’s counsel claims that such direction should not here be given, because of the alleged depraved character of the children’s mother. This presents an issue of fact which must go to a reference. While such reference is pending, the children may remain in charge of their grandmother.