State v. Phillips

17 Del. 11 | New York Court of General Session of the Peace | 1897

Tore, C. J:—

Philips and his wife were divorced by act of the General Assembly of this State, which act is silent as to custody of their only child, a boy fourteen years of age. The wife has retained and insists on his custody. There is no objection to the fitness of either parent to have such custody. The father has tendered himself ready to support the child, if allowed the custody of him; the mother refuses such custody and yet claims from the father separate maintenance. At common law, the duty of maintenance of children by parents, was based on the right to custody, society and services of the child. As this child is not an infant of tender years, and the father is shown to be a fit person to have him in charge, there seems to be no just reason why he should support the child, whose custody, society and services are enjoyed by the mother.

We therefore order the case dismissed.