22 N.J.L. 286 | N.J. | 1849
The opinion of the court was delivered by
The return to this writ show? that the defendant, Elizabeth M. Stigall, is the mother of the three children required to be produced in court, and that they and their mother are living for the time present with her father, (Charles W. Turnley, the other defendant, but not, as he retains in his custody or control, but merely there at the mother’s request for support and consolation. The father prosecutes the writ, and demands the custody of his three children, and that they should be taken from the mother, and given to him. The parents, without a divorce, live separate aud apart; the mother having left her husband’s abode and taken her children with her, in her return sets up, by way of excuse, various grounds of crimination against the husband, all of which he, in his answer, ex
The custody of children, as a general principle, belongs to 'one or both of the parents, yet for their protection and education, or the preservation of their property, courts of equity, in the exercise of a sound discretion, will deprive both parents of the custody, and place them with third persons. 2 Story’s Equity, § 1311, and the cases there referred to.
When a child is brought up on habeas corpus, if of sufficient age and discretion, the court will only ascertain whether the child is under restraint, and if so will merely make an order setting him at liberty, to go where he chooses; and if it be necessary to give effect to that order, will send an officer to see that it is respected and observed. And the same rule applies when a wife, apprentice, or any other person who has arrived to years of discretion, is brought up on habeas corpus, the court usually refusing to make other order, unless it be absolutely necessary. Rex v. Deleval, 3 Burr. 1434; Rex v. Clarksen, 1 Strange 444 ; Rex v. Smith, 2 Ib. 982 ; Case of Woolstonecraft, 4 J. C. R. 80.
But where the child is of tender years, and the father and mother have separated, or the wife has left the abode of her husband, it often becomes necessary for the court or judge, on the return of the habeas eorpus, to determine as to the custody of the child, without waiting for the slower action of tile chancellor, or referring the matter to him, as the parens patriae, in the place of the sovereign. There are two classes of cases, in the books, very distinctly marked in character and princi
But in the case of illegitimate children, the mother, and not the putative father, is entitled to the custody ; and if deprived of it, the court will restore them to her. Rex v. Mosely, 10 Vesey 52, note a ; Rex v. Soper, 5 T. R. 278 ; 7 East 579 ; 2 Inst. 375; 2 Mass. 109.
Under the general rule of the common law, courts have not felt authorized to take the child from the father, and give it to the mother, although some very strong cases have arisen which seem to demand the interference of the court. Thus, in the case of De Manneville, 5 East. 221, the court refused to take a child of eight months old from the father, and give it to the mother, on the allegation that he intended to take it out of the kingdom ; and even the chancellor, on application in the same case, (10 Vesey 52) merely made an order restraining the father from removing the child from the kingdom, but refused to order it to be delivered to the mother, living separate from the husband. And in the 'case of Skinner, 9 Moore 279, wherein the mother applied to have the child removed from the father, who was living in jail and cohabiting with a mistress, the court refused to make the order, referring the matter to chancery, as the proper tribunal To the same effect is Ball v. Ball, 2 Sim. 35, and Wellesley v. The Duke of Beaufort, 2 Russ. 9. This rule seemed so harsh and unsatisfactory that parliament was constrained to mitigate its rigor, and now, by 2 & 3 Viet. c. 54, § 1, the chancellor or master of the rolls, upon petition of the mother of any infant in the custody of the father, or other person under his authority, may make or
Cited in Magee v. Holland, 3 Duteh. 99 ; State v. Baird. 3 G. E. Gr. 199.