248 A.D. 423 | N.Y. App. Div. | 1936
On the petition of appellant’s wife the Children’s Court in and for the County of Oneida entered a judgment on December 2Í, 1935, declaring appellant to be “ hable for the support and maintenance of his * * * children ” and directing that appellant contribute toward their support by paying into court each week the sum of eight dollars for six months and thereafter the sum of ten dohars weekly until the further order of the court. At the time an action for separation brought by the wife against appellant was pending wherein the Supreme Court had apparently
The Children’s Court Act (Laws of 1922, chap. 547, as amd.) states that the court has original jurisdiction of neglected and abandoned children (§ 6, subd. 1, cl. g) and also (§ 6, subd. 2) that the court has original jurisdiction subject to the jurisdiction of a court of record in a civil action or proceeding to inquire into, hear and determine the liability of any person who abuses, neglects or willfully fails to provide for the proper maintenance of a child.
It is clear from the testimony given in the Children’s Court by the wife herself that she voluntarily left her husband before starting the separation action and took with her the two children and all the household furniture to her father’s home where she and the children have since resided; that she has refused to return to her husband and his home with the children, although the husband has importuned her to do so; that she has money in the bank and that the children are neither neglected nor at all in want of maintenance or need of proper care.
It has been stated that it is not necessary in such a proceeding as this to prove that the children are in actual want; that it is sufficient if the welfare of the children with respect to their maintenance and freedom from neglect and abuse warrants court action. We accept this as the law of this case. But even conceding that the Children’s Court had jurisdiction because the Supreme Court in the separation action had made no provision for the maintenance of the children (Rosenberg v. Rosenberg, 241 App. Div. 411), we see no occasion for the granting of the order on appeal. From the state of facts mentioned we do not find that appellant has abused, neglected or willfully failed to provide for the proper maintenance of his children within the contemplation of the Children’s Court Act. The father expresses every willingness and a strong desire to care for his children and wife in his own home. According to his testimony he is financially able to do so. No good reason appears for the wife’s refusal to join him in his home with the children. The record does not indicate that the welfare of the children at present or in the immediate future requires the interposition of a court. The children are not being abused or neglected; are not suffering through lack of proper care or maintenance in
The judgment appealed from should be reversed and the proceeding dismissed.
All concur. Present — Sears, P. J., Taylor, Edgcomb, Thompson and Lewis, JJ.
Judgment reversed on the law and facts, without costs, and proceeding dismissed.