56 N.Y.S. 323 | N.Y. Sup. Ct. | 1898
Exceptions of respondent to report of Martin L. Hollister, Esq., referee, to whom was referred the issues raised by the relator’s traverse to the respondent’s return to habeas corpus, directing the production, by her, of Lillian Winston, the infant daughter of the relator and respondent. When this case was before the Appellate Division, it was held by the court that, until the child is actually produced before the court, so that it is within its jurisdiction, there can be no adjudication upon the question as to its custody. People ex rel. Winston v. Winston, 31 App. Div. 121. This disposes of the exception to the failure of the referee to give his opinion upon the issue whether the 'relator is an unfit person to have the custody of the child, by reason of the adultery of which he was convicted in the divorce action brought by him against the respondent. The ¡court will not consider this issue, which is involved in the question of the right to the custody of the child until the child is produced before it, and, therefore, the only issue to be now considered is the controversy as to whether the respondent and the child were nonresidents of the State when the writ of habeas corpus was granted. That question is raised by the respondent’s exception to the referee’s finding and conclusion “ that relator, respondent and the infant child, Lillian, are now and were when the writ of habeas corpus was served on respondent herein, and have been for several years past, under the laws of this state, undoubted legal residents of the state of New York,” and “ that from all the evidence presented to him in this matter that the respondent removed herself and said infant from this state to the state of New Jersey temporarily, for the purpose of being out of the jurisdiction of the courts of this state, and for the further object of avoiding the service upon her of any process or mandate of the court.” If these exceptions are sustained, then there will be no necessity to consider the question of custody of the child, because the court -has no jurisdiction; but, on the other hand, if the findings of the referee are sustained, the court must make an order for the production of the child in order that the right to its custody, or the propriety of leaving it in the custody of its mother as at present, may be properly determined. The custody of the child, was given to the mother by the father upon their separation in
Ordered accordingly.