In re Barré, 5 Redf. 64

In re Barré

5 Redf. 64 | N.Y. Sur. Ct. | 1880

The Surrogate.

It is claimed, in behalf of the minor, that, the objections having been withdrawn, the appointment of Mrs. Davis, as guardian of the minor, should follow as of course ; while, on the other hand, it is claimed that it is the duty of the Surrogate to consider the proof, and to determine on that proof what, in his opinion, will best subserve the interests of the minor, consistent with the rights of the mother.

The above facts establish to my mind conclusively, that the conduct of Mrs. Davis, and of her counsel, was an inexcusable and unlaxvful interference xvith the legitimate authority of the parent over the custody of her infant child, and that there is no evidence to impugn the good character and pecuniary ability of the parent, nor *68any. to show that she has in any manner forfeited her parental authority over the daughter; it seems to me that it would be nothing short of judicial usurpation to intervene between the parent and the child, under the circumstances of this case.

It needs no argument to show that the mother, in the absence of a father, has the right to influence and direct the conduct, residence, education, occupation, and associates of her infant child, and I see nothing in this case, though she has unwisely, doubtless, yielded to the importunities of her daughter, to justify the conclusion that she has surrendered that authority.

The letter by the mother to her counsel, asking him to withdraw from this contest, contains internal evidence that she did not voluntarily withdraw, but that she was constrained to do so by the apparent alienation of her daughter’s confidence and affection, and her unwise and inexcusable association with those who were not her real friends ; and hence, I cannot escape the conviction that it is my duty to investigate the facts of the case, and only in a clear case to supplant a parent in her authority over her children, and that such apparent surrender on the part of the mother does not relieve this court of its responsibility as the guardian of her true welfare.

I am aware that, by section 2821 of the new Code, .authority is vested in this court to appoint a guardian of ,-an infant, whose parents are living; but it is manifest that that authority should never be exercised except in cases where parents appear to be unfit for the control of their infant children, or where they have interests adverse to such minors. •

*69It is true that, there is no proof in these proceedings to justify any adverse conclusions respecting the good character of Mr. McQuade, but if I am right in the conclusion that the mother’s authority over the child is unquestionable, her caprices in that regard are entitled to respect by the daughter, and her authority as the mother to submission by her.

It is quite apparent from the whole case that the effort to procure the appointment of Mrs. Davis as the guardian of the person and property of the minor is to enable her to contract through her guardian with Mr. McQuade, and set the authority of the mother at defiance.

Petition dismissed.