In Re Pfahler
The petitioner, as the father of Alice Rose Elizabeth Pfahler, an infant of the age of five years, seeks by means of a habeas corpus to compel Sarah Bennett, the child‘s maternal
I am convinced by the proofs, notwithstanding the denial of the petitioner to the contrary, that he is content to allow his daughter Delphine to continue in the custody of the mother. He has made no effort to regain the custody of his daughter Delphine. He says that shortly after his first wife‘s death he several times endeavored to persuade the respondent to restore his daughter Alice to him, although he had no home to bring her to other than the boarding houses in which he resided. It is apparent from the proofs that the petitioner manifested little regard for the society of either of his children, and that he was content to allow their respective custodians to have full custody thereof. It is manifest to me, notwithstanding the denial of the petitioner to the contrary, that he very infrequently called to see his daughter Alice, and was indifferent as to her welfare. The respondent testified that the petitioner‘s father stated to her, in the petitioner‘s presence, when they visited the home of the respondent at Christmas time, 1925, that the petitioner would not then have visited the respondent‘s home to see his daughter Alice if he, the petitioner‘s father, had not made him do so. This was not denied by the petitioner or his father.
It appears from the testimony of the respondents (and I am convinced as to the truth thereof) that when the petitioner, shortly after his wife‘s death, talked with respondent about delivering up to him the custody of his daughter Alice, he agreed with her that if she would resume her residence in the city of Bayonne he would be content to permit his child to continue in her custody; and the respondent, relying upon the petitioner‘s assurance in this respect, removed from Cranford to Bayonne. While I appreciate that this agreement is insufficient in law to deprive the father of the right to the custody of his child, nevertheless he manifested his willingness to abandon her to the care and custody of the respondent.
There is no proof in the case which indicates that the respondent has at any time said or done anything which would tend to wean the child‘s love and affection from her father. The respondent testified that the petitioner did not visit her home from the visitation which he made in the company of his father at Christmas time, 1925, until February, 1927 — shortly before the commencement of this proceeding. His absence from and non-communication with his said child for so long a period of time do not, in my judgment, jibe with his present protestations of sincerity in seeking her custody. The child enjoys a very comfortable home with the respondent, and is beloved by not only the respondent, but by her husband and other members of her household. The respondent‘s home is situate not far distant from the home of the petitioner in the city of Bayonne.
Disregarding, however, for the purpose of my determination of this matter, the conversations and undertakings between the petitioner and the respondent with respect to the custody of said child, I am convinced that it would not be for the best interests of the child that she be taken from the custody of the respondent and delivered over to the custody of the petitioner. While nothing has been urged in this proceeding against the fitness of the petitioner to properly care for his child, it is manifest to me that if said child were delivered over to him the environment in which she would be brought up would be subversive of her welfare and
The petitioner‘s wife testified that after she was married to the petitioner they (the parties referred to) told her what happened on that occasion.
Notwithstanding that it was disclosed on the cross-examination of Mabel Hunter that she was the mother of a child born out of wedlock, I was favorably impressed with the manifest sincerity and truthfulness of her testimony, which reflected discreditably upon the behavior and morals of the petitioner‘s wife. Miss Hunter testified that the petitioner‘s wife, on several occasions, to her knowledge, visited the same neighbor‘s home hereinabove referred to, and remained there carousing and carrying on in a manner discreditable to her — on one occasion from nine o‘clock at night until one-thirty o‘clock the following morning, during which time she, the petitioner‘s wife, consumed alcoholic beverages and smoked cigarettes. Miss Hunter testified also that on one of the occasions when the petitioner visited the home of her said neighbor she was accompanied by two children who had been entrusted to her care by a friend, that one of the children cried, and Mrs. Pfahler violently laid hands upon said child and slammed it into a chair, at the same time saying she was “sick and tired of the kid, and was going to send it home.” Miss Hunter not only testified that the petitioner‘s wife was accustomed to drink beer, wine and whiskey, but that she was
Aside from the fact that the petitioner‘s wife, in my judgment, is an unfit person to whom to entrust the petitioner‘s child (and it is apparent that the child would be entrusted to her care while the petitioner would be away to his work) it appears, from the testimony of Mrs. Pfahler herself, that she, for some years past, has suffered ill health, and that it was only a few months prior to the commencement of these proceedings that her health would permit her to assume the care of the petitioner‘s child.
Where, as in the case sub judice, the father has, by his conduct, evinced an apparent intention of relinquishing the care and custody of his child to the child‘s maternal grandmother, and in consequence thereof the child has formed new ties and
It has been repeatedly held that the legal right of the father to the custody of a child cannot be disregarded without justifiable cause. But that right must be held in subordination to and exercised in consistency with the rights, the moral training, and the highest welfare of the child. See Albert v. Perry, 14 N.J. Eq. 542; Winans v. Luppie, 47 N.J. Eq. 302. All of the cases indicate that “the highest welfare of the child” should be the concern of the court.
In Richards v. Collins, 45 N.J. Eq. 283, it was held that the strict legal right of the father to the custody of his child will not prevail, if it imperils the personal safety, morals, health or happiness of the child, and that the court will scrutinize the character, condition, habits and other surroundings of the father.
The respondent would doubtless be obliged to yield to the superior and natural right of the petitioner, unless thereby the well-being of the child would be jeopardized. The reported cases indicate that the parent‘s right will not be denied unless the foster alliance was protracted and acquiesced in in a spirit of abandonment, and a severance will be disadvantageous to the child. Such conditions I regard as manifest in the case sub judice. In In re Judge, 91 N.J. Eq. 395, citing Richards v. Collins, supra, the court says: “The infant‘s welfare, all matters considered, is paramount and compelling in the eyes of the chancellor as parens patria. The parental right, however, is never lost sight of as an influential and determining factor * * *. The strict legal right will not be subordinated unless circumstances of weight and importance connected with the welfare of the child exist to overpower it, and those circumstances must be such as to imperil the personal safety, morals, health or happiness of the child.”
In Lippincott v. Lippincott, 97 N.J. Eq. 517, 519, the
I will advise an order denying the petitioner‘s prayer, but, in order to avoid any misunderstanding as to the relative rights of the petitioner and respondent to the custody of the child in question, and the denial of the petitioner‘s prayer for custody of the said child, it must be borne in mind that the present adjudication relates only to present conditions. The petitioner, as the father of the child, is merely denied the right to, at this time, be awarded the custody of the child, because of the environment which, in my judgment, would surround the child if it were to be entrusted to the care of the petitioner‘s wife, which must necessarily follow if awarded to the petitioner, during the time, at least, when the petitioner is away from his home. As was said in Kopcinski v. Richardson, 94 Atl. Rep. 32 (at p. 34 — Vice-Chancellor Leaming): “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 the 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 order denying the petitioner‘s prayer for the custody of his aforesaid daughter, which, in effect, will continue the child in the custody of the respondent, the child‘s maternal grandmother, shall provide for the right of visitation by the father at certain intervals, which may be agreed upon between the petitioner and the respondent to suit their respective convenience;