153 Misc. 434 | N.Y. Sup. Ct. | 1934
Petitioner and respondent reside in Chenango county, N. Y. They are the mother and father of Beverly Jane Sisson, aged eight. The petitioner alleges that the respondent is affiliated with a cult known as “ The Megiddo,” having a mission at or near Rochester, N. Y.; that said cult holds, teaches and practices certain doctrines, beliefs, principles and theories which are not in accord with commonly-accepted teachings and practices. She further alleges that the respondent claims and exercises the right to take the child from the home of the parties (where petitioner is confined by invalidism) to the Megiddo mission, at more or less regular intervals, for periods of from two to five days; that at said mission the child is taught the doctrines and principles of the cult, and theories and beliefs not ordinarily accepted are instilled in the child’s mind; that the petitioner and her child are deprived of the normal relationship and mutual benefit that should exist between them, to the detriment of the child’s education, welfare
Section 81 of the Domestic Relations Law provides that “A married woman is a joint guardian of her children with her husband, with equal powers, rights and duties in regard to them.”
On the return of the writ the respondent appeared specially and objected to the jurisdiction of the court. He says the writ is not authorized by section 70 of the Domestic Relations Law because the parents are “ not living in a state of separation.” That section provides in part: “A husband or wife, being an inhabitant of this state, living in a state of separation, without being divorced, who has a minor child, may apply to the supreme court for a writ of habeas corpus * * *; and on the return thereof, the court * * * may award * * * the charge and custody of such child.” The character and extent of the separation necessary to enable one parent to proceed under said section has not been definitely adjudicated. (People ex rel. Sternberger v. Sternberger, 12 App. Div. 398, 400.) We do not here determine whether the petitioner and respondent are living in such a “ state of separation ” as to come within the section. We assume they are not.
Where the interest and welfare of a child is involved, can one parent proceed by habeas corpus against the other parent only when authorized to do so by statute?
The writ of habeas corpus existed at common law. “ The statutes which have been passed in England * * * and in this State from the time of its first organization, have not been intended to detract from its force but rather to add to its efficiency * * *. This writ cannot be abrogated, or its efficiency curtailed, by legislative action.” (People ex rel. Tweed v. Liscomb, 60 N. Y. 559, 566.) Statutory authority for the writ is, therefore, unnecessary.
“ The writ of habeas corpus was limited in its origin to cases of restraint under color or claim of law. * * * In time, however, it was extended to controversies touching the custody of children, which were governed, not so much by considerations of strictly legal rights, as by those of expediency and equity and, above all, the interests of the child.” (People ex rel. Riesner v. N. Y. N. & C. Hospital, 230 N. Y. 119, 124.) “ In the case of children of the age of discretion the object of the writ was usually accomplished by allowing the party restrained the exercise of his volition, but in the case of an infant of an age to be incapable of determining what was best for itself the court or officer made the determination for it.
There can, we think, be no question of the jurisdiction of the Supreme Court over its resident infant children, to be exercised in the interest of their welfare.
How is this jurisdiction to be exercised? The respondent concludes that the only relief available to a parent who is not living in a state of separation from'the other parent is to petition the Supreme Court and seek its equitable jurisdiction. He cites Finlay v. Finlay (240 N. Y. 429). That case does not sustain his conclusion. It held that a parent could not maintain an action against the other parent for custody of a minor child. It did not hold that the writ of habeas corpus would not lie. At page 432 the court said: “ Except when adjudged as an incident to a suit for divorce or separation, the custody of children is to be regulated as it has always been in one or other of two ways: by writ of habeas corpus or by petition to the chancellor.” Referring to section 70 of the Domestic Relations Law, the court continued (p. 433): “ We do not need to determine whether there is today a remedy by habeas corpus available to either spouse irrespective of the statute * * *. If we were to assume with the plaintiff that the writ has been denied to him, there would remain his remedy by petition to the chancellor or to the court that has succeeded to the chancellor’s prerogative.”
Furthermore, the parties are in court on a petition showing the facts. That respondent is brought in by a writ of habeas corpus . rather than on a petition and order to show cause is not vital to the court’s jurisdiction.
We hold that this court has jurisdiction in this proceeding. The final order may recite respondent’s special appearance and objection to jurisdiction and provide that the objection is overruled with exception.