141 N.Y.S. 123 | N.Y. App. Div. | 1913
Lead Opinion
The order appealed from awards the custody of a female infant, now about three and one-half years of age, to her father, Leopold Alfred Meyer, with a provision that the child shall be taken to the residence of its maternal grandfather once in each month, there to remain for the period of six days, with the privilege to said grandfather and his daughter, the infant’s aunt, to visit the child once in each week for the remaining weeks of each month, and upon such visits to remain with the child for three hours. .
At the time the writ was sued out, and while the evidence was being taken before the referee, both the father and the grandfather lived in the borough of the Bronx, in the city of New York. We are now advised by the briefs of counsel for both parties, as well as by the papers submitted upon another appeal in the same matter and now on our files, that the father has now removed to Boston, in the State of Massachusetts, taking the child with him, and that he proposes to remain there. Assuming this to be true, it is apparent that the condition in the order which provides that thé child shall be carried back and forth between Massachusetts and New York city once in every month is intolerable, and one which cannot make for
It is now too well settled to require fortification by extended citations from cases that, in determining to whom the custody of an infant of tender years shall be confided, the paramount and controlling consideration is the welfare of the infant. To this all other considerations must be subordinated including the wishes of the parents, or, as in this case, the surviving parent. Of course a father or a mother has a strong natural claim to the custody and companionship of a child, but ev.en this must give way where it clearly appears that the child’s welfare requires a different disposition of its custody. (Matter of Waldron, 13 Johns. 418; People v. Mercien, 8 Paige, 47; People v. Wilcox, 22 Barb. 178; S. C., sub nom. Wilcox v. Wilcox, 14 N. Y. 575; People ex rel. Wehle v. Weissenbach, 60 id. 385; People ex rel. Oprandy v. Ciarcia, 49 App. Div. 90; Wood on Habeas Corpus [3d ed.], 137; Matter of Riemann, 10 N. Y. Supp. 516 ; People ex rel. Humex v. Phelps, 58 Misc. Rep. 625; Matter of Knowack, 158 N. Y. 482; Matter of Wentz, 9 Misc. Rep. 240; Matter of Welch, 74 N. Y. 299; People v. Rubin, 98 N. Y. Supp. 787; People v. Trafford, 12 id. 43; People v. Olmstead, 27 Barb. 9; Matter of Easton, N. Y. L. J., July 15, 1911, Bischoff, J.)
So far as concerns its present care and its future material prospects there seems little room to doubt that the child’s interests will be best subserved if its custody be awarded to its
The father is a man of much more moderate means, and yet of sufficient to provide for his child comfortably. He is engaged in business in a small way out of which he gains a fair profit. He has, or had when the referee’s report was made, ho home of his own, living for the most part in boarding houses. His business is of such a nature that he is required to travel through the country a good deal and sometimes for weeks at a time. His immediate family consists of his mother, now somewhat advanced in years, and a sister who is engaged in a business pursuit which occupies all of her time except in the evenings, so that the care of the child, if consigned to the custody of its father, would practically devolve upon his mother.
Notwithstanding the superior financial ability of the grandfather we should hesitate to deprive the father of the custody
The testimony is replete with proof of his animosity towards and hatred of Edward Robitzek. and his family, which indeed the relator does not seek to conceal.
His relations towards his wife were marked with cruelty and indifference, to such an extent that when warned that his wife lay at the point of death, and that to take her child from her would have an injurious effect, he wrote: “ I don’t care a rap whether you claim Rose is dying or not. It does not interest me.”
The relator and his wife married on April 17, 1907, and their child was bom on June 14, 1909. The mother, during her married life, suffered from a number of diseases, culminating in tuberculosis of which she died in the home of her parents in April, 1911. The relator and his wife lived together, very unhappily, until May, 1910, when Mrs. Meyer left her husband and went back to her parents’ home. Her baby was brought there to her in June, 1910, and thereafter remained with her until her death. On October 14, 1910, Meyer and his wife executed articles of separation, wherein among other things the sole custody and control of the infant'daughter, without any interference on the part of the father, was given to the mother. The evidences of Meyer’s lack of consideration and affection for his wife are numerous, and it would be wearisome to recount them. The most glaring and significant perhaps is the fact that when, as he knew, his wife was about to undergo a very .serious and critical operation, he refused to stay by her side, hut started' off a day or two before it was to take place upon a business trip which, from all that appears, could have been postponed without loss or inconvenience.
After his wife died he refused to attend her funeral although he was duly notified and could easily have come, and he
We find it impossible to believe that a husband who displayed towards his wife, during her lifetime, such heartless indifference as the petitioner displayed can entertain for her offspring so profound an affection as the relator expresses, or as would insure to that offspring the tender parental care which is essential to the welfare of so young a child. That he has prosecuted this proceeding with vigor and at large expense does not convince us of the depth of his affection, for a quite sufficient incentive is to be found in his hatred of his wife’s relatives.
We are, therefore, clearly of the opinion that the interests of the infant will be best served if its custody be awarded to its maternal grandfather, Edward Eobitzek, and his daughter Hazel, jointly, with leave to the father to visit and see the child on one day in each week, the particular day to be fixed by the order to be entered hereon.
The order appealed from will, therefore, be modified accordingly, with ten dollars costs and • disbursements to the appellant, respondent, Edward Eobitzek.
Ingraham, P. J., and Clarke, J., concurred; Laughlin and Dowling, JJ., dissented.
Dissenting Opinion
The general rule relative to the custody of children, and amply sustained by authority, is laid down in the Cyclopedia of Law and Procedure (Vol. 29, p. 1590), as follows: “A parent who is of good character and a proper person to have the custody of the child and reasonably able to provide for it is entitled to the custody as against other persons, although such others
When the rule thus enunciated is to be departed from it can only be justified upon the ground that the welfare of the child requires that a different- disposition should be made of its custody. In inquiring as to what course is best to follow for the child’s welfare, the question is not one of the financial condition of the parent or of the third party, but the solicitude of the court is to be exercised in procuring for the child such custody as will insure its. upbringing under proper influences, amid proper surroundings, and with due regard to its mental, physical and moral development. In the case" at bar every one of these elements, as has been disclosed by the testimony, will be fully protected if the child is left in her father’s care. He is a business man of high character and proved integrity, who earns an income sufficient to provide for himself and for his child, with due regard for her comfort. Despite the evidefit animosity displayed towards him on the part of his wife’s relatives, the only question which has been raised as to his conduct towards his child has been upon hearsay evidence that once he struck the child. The learned referee before whom the voluminous testimony in this case was taken has found that during the greater part of his married life the relator treated his wife in a tyrannical and insulting way, and acted in the same way towards his father-in-law and the members of the latter’s family. It is quite true that there is evidence in the record, denied, however, by the -relator, which, if true, would show acts of heartless conduct on his part towards his wife during her long period of illness; but we are -not now concerned with the trial of an
I can find no suggestion in this record for any reason for bringing this case within the exception, save for the reason already assigned, that the relator was cruel towards his wife and lacked in consideration for her, and for the further reason that his father-in-law is richer than he is. It is quite true that the father-in-law has made provision for the child by his will, but that provision is 'revocable at his pleasure,- and I should be inclined to attach more importance to his intentions for the future if he had shown some disposition to confer financial advantage upon the child in the' past. There is nothing in the testimony to show that the child will be better cared for in another household than in the father’s own. The fact that the child has been heretofore living under the care of relator’s sister-in-law was due to the separation of the relator and his wife under conditions which it is unnecessary now to recite. Where the surviving parent is a man of unimpeached character, attached to his child, and able and willing to provide a home for her, amid proper surroundings and with proper opportunities for her training and education, I can see no reason for depriving him of such custody because another relative happens to be in more affluent circumstances than he. A child should not be encouraged in expecting to be brought up amid more luxu- - rious surroundings than those to which the means of her father entitle her, and it would be, in my opinion, no act of kindness to her, nor would it insure her a happier future, to remove her
Laughlin, J., concurred.
Order modified as directed in opinion, with ten dollars costs and disbursements to the appellant, respondent, Robitzek. Order to be settled on notice.