19 Wend. 16 (N.Y. 1837)
By the Court,
Many of the cases are very strong and decisive in vindication of this
paternal authority. In King v. DeManneville,
5 East 221, the child was only eight months old, and had been forcibly taken
from the mother, and there was some ground of apprehension that the father
intended to carry it out of the kingdom. But the court refused to interfere.
Ld. Ellenborough observed, that the father was the
person entitled by law to the custody of his child; that if he abused the right
to the detriment of the child, the court would protect it. Having the legal
right, and not having abused it in that case, he was entitled to have it
restored to him. The case of Mr. Lytton, and Sir
W. Murray, referred to by Lawrence, J., in the same case, were
equally decisive upon the point. In the case of DeManneville,
the mother had separated from her husband on an allegation of ill usage, and
taken the child with her. This same case afterwards came before Ld. Eldon, 10 Ves., 51, who also refused the mother the custody of the
child, as she had [**3]† withdrawn
herself from the protection of her husband; but restrained him from removing
the child out of the kingdom. In the case Ex parte
Skinner, 9 J. B. Moore 278, the infant was six years old, and the court
refused to take it from the custody of the father and deliver it over to the
mother, and placed the refusal upon the authorities above cited. In Ball
v. Ball, 2 Sim., 35, it was decided by the Vice-Chancellor,
that the court had no jurisdiction to deprive the father of his common law
right to the care and custody of his infant children, even though he was living
in a state of adultery, unless he bring the child in contact with the woman.
All the cases on the subject, he said, proceeded upon that distinction, and
which appears to have been conceded by the counsel for the mother. In the great
In one specified case, the Revised Statutes have enlarged the power of this court over the subject beyond that which it appears from the authorities above referred to existed at common law; and provide, that on the application of the mother, being an inhabitant of this State, in case the husband and wife live in a state of separation without being divorced, "the court, on due consideration, may award the charge and custody of the child so brought before it (on habeas corpus) to the mother, for such time, under such [**5]† regulations and restrictions, and with such provisions and directions, as the case may require." 2 R. S., 148, 149, secs. 1, 2. It may also annul or modify the order at any time after it is made. Sec. 3. It may be well doubted, I think, whether this statute was intended to apply where the wife withdraws from the protection of the husband and lives separate from him without any reasonable excuse; because then the separation would be unauthorized, and in violation of the law of the land. It was probably designed to remove the difficulty that existed at common law in denying or restraining the authority of the father in the case of an authorized separation, such as for ill usage, or by consent, where no ground existed for impeaching that authority upon common law principles. The Legislature could not have intended that the court should ever award to the mother the care and education of her minor children, when she had willfully and without pretense of excuse, abandoned her family and the protection of her husband, if he was in a situation to take care of them, and no well founded objection existed in the case.
†[*19]† The interference of the court with the relation of father and child,† [**6]† by withdrawing the latter from the natural affection, kindness and obligations of the former, is a delicate and strong measure; and the power should never be exerted except for the most sound and solid reasons. In this country, the hopes of the child in respect to its education and future advancement, is mainly dependent upon the father; for this he struggles and toils through life; the desire of its accomplishment operating as one of the most powerful incentives to industry and thrift. The violent abruption of this relation would not only tend to wither these motives to action, but necessarily in time, alienate the father's natural affections; and if the property should be accumulated, the child under such circumstances could hardly expect to inherit it.
In view of the foregoing rights of the father, and duty of the court, I have diligently and carefully examined the facts disclosed in the affidavits, and feel myself bound to say, that upon the whole, nothing appears that can justify the conclusion that the father is not a fit and proper person to have the care and education of his child, or that it would be for the interest of the child, pecuniarily or otherwise, to commit its custody [**7]† to the mother, according to the principles of the common law, and the numerous adjudged cases already referred to. I must also say, that unless the case can be materially varied, Mrs. Nickerson has greatly mistaken the obligations and duties which devolved upon her by the marriage vow; and that she is now living in a state unauthorized by the law of the land. The Statute 2 R. S., 145-147, arts. 3, 4, enumerates the cases in which a separation may be legalized, either by a dissolution of the marriage contract or by a divorce from bed and board. The course of the decisions of the Court of Chancery clearly show that no divorce or separation could be de creed upon the facts before me.
It is, no doubt, possible that the home of the wife may be made intolerable without any actual violence committed upon her person; harsh and cruel usage that would justify a separation, may be practiced towards her short of this by an unkind husband, and this is what seems intended to be† [*20]† intimated in the affidavits opposing this motion. Upon questions, however, involving such solemn considerations, and so deeply affecting the future condition and character of the parties, we cannot act upon insinuations.† [**8]† We regard only the facts. The character of the relator in this case, is very strongly supported by his neighbors and acquaintances, who have known him from infancy. They declared upon oath that he is a young man of sober, moral and industrious habits, and express the belief that he has ever conducted towards his wife with kindness and affection. Many of them have been on intimate terms with the family, and in a situation to have known or heard of harsh or unkind treatment of the wife if such had existed. They not only discredit such allegations, but are led to the belief that she was well provided for, contented and happy, and appear surprised at allegations to the contrary. The relator himself has denied in the most express terms all unkind conduct, and any desire or intention to injure the person, or wound the feelings of his wife, and expresses a strong and becoming anxiety that she would return to his protection and home. Under all this weight of evidence, it is difficult for us to conclude that he has meanly and secretly outraged her affections, or sought the privacy of the conjugal relations to torture her feelings and thus render her life wretched and insupportable with him,† [**9]† at the same time concealing from his neighbors and even intimate friends any apparent unkindness or want of affection.
An order was accordingly entered that the child be delivered to the father, and that the care and custody of her be committed to him.