27 Barb. 9 | N.Y. Sup. Ct. | 1857
That the father has, by the common law, the paramount right to the custody and control of his minor children, and to superintend their education and nurture, is too well settled to admit of doubt. Such has been his ac
In The King v. Johnson, (ubi supra,) the right of a testa?
But while such is the general rule, it is equally well settled that this superior legal right of the father is subject to the control of a court of equity in two cases: 1. When the father has abused or forfeited the right by cruelty or misconduct towards the children, or is of such character, or has been guilty '< of such conduct, that their welfare, either physical or moral, requires that they shall be removed from him. (The King v. De Manneville, 5 East, 228, per Ld. Ellenborough and Lawrence, J., and Lytton’s case there cited; 10 Vesey, 61, 2; 4 J. B. Moore, 278; 4 Ad. & Ellis, 641, per Ld. Denman, J.; Wellesley v. Duke of Beaufort, 2 Russ. 1; 18 Wend. 643; 19 id. 16; 25 id. 105; and other cases cited above.) 2. Where the father and mother are living separate from each other, under such circumstances as would warrant the court in granting the wife a divorce a mensa, and the welfare of the children requires that they should reside with the mother. (2 R. S. 148, 9, §§ 1, 3; 17 Eng. Law & Eg. Rep. 77; 19 Wend. 18; 8 Paige, 53; 2 Russ. Ch. Rep. 1, and cases cited above.)
I am aware that there are dicta in some of the authorities cited, and in other dases in the books, which, at first view, ap- . pear to contradict the general rule of the paramount right of. the father, as I have stated it, and which apparently overrule some of the authorities above cited to sustain it. I think, however, it will be found, on examination, that none of these cases are really at variance with the cardinal principle. They proceed, either upon the form of the proceeding and the nature of the remedy invoked, or upon one of the two classes of exceptions above adverted to.
The cages of the first character are well illustrated in The
The cases of the second character are illustrated in this very case of The King v. Delaval, where Lord Mansfield; speaking of the powers and duties of the court upon habeas corpus to dispose of the custody of infants, says:. “The true rule is, that the court are to judge upon the circumstances of the particular case, and to give their directions accordingly.” To one or the other of these decisions may be 'referred, (besides the cases of The King v. Penelope Smith and The King v. Delaval,) the following authorities: Matter of McDowles, (8 John. 328.) Matter of Waldron, (13 id. 418.). Matter of Wollstonecraft, (A John. Ch. Rep. 80.) Mercein v. The People, (25 Wend. 102, &c., per Paige, senator.)
Such being the general rule, ;and the exceptions /to it, the questions here presented are, (1.) Whether the relator has forfeited his parental rights by cruelty or misconduct towards his child, or whether he is of such a character that the interests of the child require -its removal from under his. influence. (2.) Whether his wife has separated from him under such circumstances as would warrant this court in granting her a limited divorce, and whether the welfare of the child requires that it should reside .with the mother. ■'
The first questiop. may be very briefly dismissed. During the whole of this long and angry litigation, it was not alleged that Mr. Olmstead had been guilty of any one act. of cruelty or misconduct to his child. Indeed, as the latter was not two
The second question naturally divides itself into two parts, (1.) Has this wife separated from her husband under such circumstances as would warrant this court in granting her a limited divorce ? If she has, (2.) Does the welfare of the child require that it should reside with the mother ? As to the first inquiry, my opinion is clear that the evidence does not show any ground whatever on which a court of equity could grant Mrs. Olmstead a limited divorce, for or on account of any cruel treatment by her husband. Hot a single act of cruelty or unkindness is proved, or even alleged, against him. He has never lifted his hand against her. It is not shown that he ever spoke or wrote to her an angry or unkind word. He provided fully for her while she would reside with him. She left him against his wishes. The whole proof shows that a
The proofs adduced here comjoel me to say, without disguise, that the sole cause of these unhappy differences, and of the entire disruption of what would otherwise have been, so far as I can conceive, a harmonious family, is to be found in the character and conduct of the respondent Mrs. Bandell, the mother-in-law of the petitioner, and in her baneful influence over the character and conduct of his wife. From an early period after the marriage, Mrs. Bandell is shown to have entertained great aversion to the petitioner, and to have expressed it very freely to him and to others. No good cause for this was assigned. Her alleged reasons were altogether frivolous. They were, that he talked too much of his family and friends; that he loved his wife too much; that he was jealous of Mr. McKeon; that, on the evening when he reached Washington with his wife, on their bridal excursion, he gave the coachman a gold half eagle instead of a silver quarter of a dollar, and was a careless fellow. These difficulties came to an open rupture, at the scene in Holdridge’s Hotel, in May, 1855, less than three months after the marriage. The parties then occupied a suite of rooms, consisting of a parlor, and two sleep*
The occurrences which took place at Clinton, during the first visit after marriage, which the husband made with his wife and wife’s mother, at his father’s house, are very fully proved by a most respectable witness who is wholly uncontradicted. They are indeed most remarkable. On the very day, or the day after, Mrs. Randell entered the house, the whole family was in disturbance; she found visiting there certain relatives of the family, in regard to whose past life she had heard some reports. - Entire stranger as she was, she accosted
The scene at the church in Clinton on the sabbath day before commencement, is a most singular proof of the length to which passion will carry even those who generally maintain a reputable standing in society. The accounts of this transaction are derived from her own lips. -As she said, she dressed herself at the tavern in the best of her wardrobe, putting on her best laces, &c., and went to the church “ determined to show them all what-she was, and that she could dress as
I shall not recount at length the scene during the night, at Ballston, between this mother and daughter, of which Mrs. Scott was the witness on the urgent solicitation of the latter. The origin of the difficulty seems to have been the discovery on the part of Mrs. Bandell, by stealth, of a letter from Mr. Olmstead to his wife, using expressions of tenderness, and urging her to return to live with him. From what is stated of the language and conduct of Mrs. Bandell on that occasion, she must have been in a state of intense excitement—almost a frenzy. I think a much stronger statement would not be out of place. When the passionate expressions of the mother had terrified the daughter, then rapidly approaching her confinement, so that she said, weeping bitterly, “ Mother, you will kill me if you talk so, and not only me but my child,” Mrs. Bandell replied, “ There is no danger of that. You treated me like a brute in leaving me at Clinton. There is no danger of killing you.”. And when Mrs. Olmstead, after some conversation, added that she would, on the morrow, if her life was spared,'return to her husband and live with him,
The full force of the expression which hade Mrs. Olmstead go to her husband, and starve and die in a garret, cannot he apprehended without adverting to one or two facts which are in proof. About this time Mrs. Eandell was frequently saying, and probably she believed, that Mr. Olmstead was unable' to support his wife, as his income did not exceed $600 or $700 per year, although the proof here is that his income was much larger than that. Before her marriage, it appears that Mrs. Olmstead had transferred to her mother all her own property, some $13,000 or $14,000 in amount, so that the latter could, if she chose, entirely withhold from the former the whole of it, both principal and interest. That Mrs. Eandell was well aware of the power which this fact gave her over her daughter, is proved by the expression which she had more than once before that night used to her, during their visit at Ballston—“ If you go to live with Mr. Olmstead again, you shall not have a dollar of my money.”
In regard to the occurrences on the night of January 14th, 1856, when the final separation of the wife from her husband took place, all the witnesses agree that Mr. Olmstead was cool, unexcited and deliberate. His wife was much excited. Mrs. Bandell must have been in nearly the same state in which Mrs. Scott describes her .to have been at Ballston, during the night in August previous. The difficulty seems to have taken its rise from a conversation between Mr. and Mrs. Olmstead during the night. This conversation had reference principally to the conduct of Mrs. Bandell towards Mr. Olmstead. It may have been indiscreet, possibly unkind for him to speak to his wife on that subject. She was, perhaps, not yet fully
What remonstrances the husband made use of to his wife on the night of the separation, does not appear. It only appears that when his wife subsequently spoke of them, she said she “ felt worried by them.” Whatever they were, she resented them so much as to make them the pretext for an immediate separation. She arose and threatened to leave him at once, and take with her their child. To her departure he seems to have interposed no obstacle; but he refused to allow her to take away the child, as well he might do, it being then
It is not material to inquire how much the account given by Mrs. Porter, of the visit of McKeon on the evening after the separation, and of the language then used by Mrs. Eandell, is shaken by the attempted contradiction of her by McKeon, and by the servant girl Eliza; for the entire rejection of that whole transaction, would not in. any manner affect my view of the case. At the same time I am bound to say, that a careful study of the testimony as reduced to writing, has but confirmed the impression which its delivery made upon my mind; and that, in all its essential features, I deem Mrs. Porter’s account of the language of Mrs. Eandell substantially correct. I cannot believe that the statements which she says Mrs. Eandell then made could have been fabricated.; least of all by such a witness as Mrs. Porter proved on her long and very close cross-examination. She had often before heard Mrs. Eandell speak of Mr. McKeon as the young man with whose marriage to her daughter she should have been so much pleased. And she could not. fail to notice and remember when McKeon was pointed out to her, such expressions on the part of Mrs. Eandell, as that he ought to have been Maria’s husband, and the child should have been his child. These declarations were indeed remarkable, but not very much more so than some other things in the case, as to the truth of which no question whatever is made. The child thus separated from its father was, not long after, baptized. Of its baptism the father knew nothing. Mrs. Eandell had previously declared he should not know of it. The name given him in baptism differs materially from that by which he had been called by his parents before their separation. Mrs. Eandell stated, before the baptism, that she would not consent that he should bear any part of his father’s name.
It is needless to dwell longer upon these unhappy differences.
This separation has, therefore, taken place without any fault on the part of the husband. No court of equity could on this case decree a separation of his wife from him, for any cruelty, unkind treatment or neglect.
This first branch of the last inquiry being thus settled, it is the end of the case. The paramount legal right of the father to the custody and education of his child can be interfered with by a court of equity only where he has been at fault in bringing about the separation. It has never been dreamed that, when the mother has been at fault in the occurrences preceding the separation, she should be rewarded for her faults by the interposition of the court. If she breaks up the household, and departs from her husband’s house, wrongfully, whether it be done of her own purpose, or from weakly yielding to the evil influences of others, she is not to be allowed to take with her the children of the union. By so doing, she would violate the clear rights of the husband, and would inflict a wrong on the children, by depriving them of the care of that protector to whom the law has wisely committed them as their best friend; and above all, she would be turning those
And here I might properly stop, did not the positions so zealously contended for by the counsel for the respondents demand a brief notice. These positions are, it must by admitted, to a certain extent countenanced by some dicta in the cases; but they are, I think, all explainable by the doubt, whether the remedy by habeas corpus is the proper one, or by the fact that those cases came within one of the exceptions to the father’s paramount right, as above stated. It was very earnestly contended here, that the true test is, not what are the rights of either parent, but what does the ultimate good of the child demand. Suppose for the moment that this is the true rule, and the whole of it, (though I cannot admit it to be so, unless the law regards the rights of the father and the real interests of the child as identical,) then the court is to judge of the true and paramount welfare of this child for him, in his stead, and as he would do, if the proper means, in respect of knowledge and the faculty of judging correctly, were temporarily conferred upon him. Biit even upon such a basis, I must surely remove him from his present custody, and commit him to the father. Else a wayward disposition, an ungoverned temper, and an inordinate regard for his own gratification, may lead him to make his life a burden to himself and to all who are connected with him. If Mrs. Olmstead, in mature life, warmly attached to her husband, and apparently sincerely desirous of living with him, has been unable to resist the influence of Mrs. Bandell, how shall this helpless child resist the mouldings of such a will and such passions ?
To give this child to its father, does not imply that it must be deprived of all a mother’s-fondness and attentions. The husband was always willing to receive and to cherish both his wife and child. There is" no -reason apparent to the court why he should not yet do so. Certainly no such reason appears in
It has been well said that a Christian wife and mother should hesitate long, and suffer much, before placing herself and her companion in the doubtful and dangerous condition of a wife without a husband, and a husband without a wife. If much ill treatment and unkindness on the part of the husband should be borne by the wife, before the family is broken up, surely there should be the greatest caution and hesitation before a husband and wife are parted.by the influence of others, when they would live happily together if left to themselves and the promptings of their own affections.
It is a painful duty to speak, as I am compelled to speak, of the party whose acts have brought before the court this unseemly controversy. But justice demands it; justice' not merely to this particular family, which has been unnecessarily, though I-hope but temporarily sundered, but also to all families and to society at large.
The family is the origin, of all society and of all government. The happy family, well organized, and successfully discharging its functions, by strengthening the parents for "the proper discharge of life’s duties, while it fits the children to succeed to those duties, is the highest type of human goodness, and the surest source of human happiness. The whole frame of government and laws has been said to exist only to protect and support the family, so that it may develop and perfect the character of its members. Such an institution is to be cherished and guarded. The dearest interests of the whole community require that it should be made, as far as possible, inviolable. The hand that has been raised against its sanctity must be stricken down. Every inducement to attack it from "without, or to sever it within, must be removed. Our laws have made the marital relation indissoluble, except for infidelity to the highest obligation which that relation imposes; and to
Birdseye, Justice.]
An order must accordingly Be entered, adjudging that the relator is entitled to the care of his infant child, and directing that the said child be delivered to him, and the. care and custody of said child be committed to him.