Opinion
05-26-1902
OUSSET v. EUVRARD.
Douglas D. T. Story, for petitioner. George A. Ryerson and Merwyn Armstrong, for defendant.
Writ of habeas corpus by Celeste Ousset against E. C. Euvrard to recover possession of her infant children. Writ denied.
Douglas D. T. Story, for petitioner.
George A. Ryerson and Merwyn Armstrong, for defendant.
STEVENSON, V. C. (orally). My conclusion is that an order should be made awarding the custody of these children to the respondent, Mr. Euvrard; and I shall therefore endeavor, as briefly as possible, to state the main reasons which have brought me to this conclusion.
The cause is an important one, and involves some novel questions,—questions that have never been debated in this state, and may very well be carried to the higher court; and, if an appeal should be taken, I may deem it proper to prepare a written opinion; but I have made up my mind, in view of the very great pressure of business upon me at the present time, that it would be inadvisable to delay the announcement of a decision, and of my reasons for the decision, until I shall find time to prepare the proper written opinion.
This writ of habeas corpus in this case has a special function. It is not the ordinary use of the writ of habeas corpus that we have here The object of this writ is not to relieve any person or persons from imprisonment The three children brought before the court by this writ are all under five years of age, are they not?
Mr. Ryerson: One is six.
The Court: The oldest is about six, and the youngest, if I remember rightly, only two years of age. There is no question about the imprisonment of these children. The writ is used here as the instrument by which the court of chancery exercises its power to award the custody of infants to the person who in law is entitled to that custody, and it is also the instrument by which the court exercises its control over infants for their benefit,—a power which is sometimes exercised in derogation of the natural rights of parents, guardians, and other legal custodians of infants. Now, the question here in regard to the custody of these three infants of very tender years is between the petitioner, who is the mother of the infants, and the respondent, who is their putative father and their actual father. The children are illegitimate, —the illegitimate offspring of the two parties before the court. Ordinarily the custody of an illegitimate child is with its mother; she has the right to the custody of the child, and she is charged with the duty of its support. She can ordinarily assert her right of custody against the father, to take the child from the father; and the court will aid her, and will recognize and vindicate her right as mother. The father has hardly any right at all of custody, if he has any at all which the law recognizes. His position is largely that of a stranger, an outsider, having no natural relation to the child or children. He may be chargeable for the support of the child, his Illegitimate offspring, under statutory proceedings; but if those proceedings are taken, and he is compelled to furnish support for the child, it is on the theory that the child otherwise would be a public charge; and the proceedings which result in an order of filiation uniformly leave the child in the custody of the mother, and the putative father is made liable to furnish support to the child while it is in the custody of the mother.
So far I have spoken of this proceeding as one strictly between the parties, in which the respective rights of the contending parties may be determined, namely, the right to the custody of the children. But this proceeding has another aspect, very distinct from the one I have referred to. The power of the court of chancery is invoked by this writ not alone for the purpose of determining the strict question of right between the mother and putative father of these children. The court regards in this proceeding the Interests of the infants, and takes care of their interests; and oftentimes the result of the proceeding is a decretal order which is in derogation of the rights of one or both of the parties, the decree being based, not upon the right of either of the parties, but upon the adjudication which the court makes in regard to the Interests of the children. If in this case we had simply to dealwith the rights of these two parties as they existed prior to the making of the agreement which has been brought before the court, it would seem that the right of the mother to the custody of these three children would be enforced. The court will not aid a parent—a parent of a legitimate child—in obtaining the custody of that child by the writ of habeas corpus, where the child is liable to be subjected to immoral influences,—where it would be brought up in vice. But where the natural right of the parent of a legitimate child or of an illegitimate child has not been affected, where it remains unimpaired, I do not think that the court will ever award the custody to the other party not holding the natural right, simply because the child, by such change of custody, would be benefited. The court will no more do that than the court would permit a very wealthy man to seize the child of a poor man and retain its custody upon the plea that if he were allowed to retain the custody of the child he would bring it up in wealth and luxury, and give it all the advantages of the very highest possible education, whereas if the child were permitted to go to its parent it would be brought up in poverty. The court does not undertake to take children from those who are their natural custodians, to take children from their parents and give them to somebody else, simply because that somebody else is richer, and can give the child or children a better show in life. Such a doctrine would be monstrous. The evidence in this case indicates that Mrs. Ousset would have the right to the custody of these three children, notwithstanding the superior advantages that Mr. Euvrard can give them, if she had never voluntarily done anything to affect her natural right. The court might hesitate to give these children to Mrs. Ousset until she had made further disclosure of her mode of life, and the circumstances in which these children would be placed and brought up. But while there is an absence of information as to those matters in this case. I do not recall that there is any positive evidence which indicates that, if these children went to Mrs. Ousset, they would not be cared for as the illegitimate children of a comparatively poor woman who had married again should be cared for. That would probably be the way the matter would strike my mind if we were simply dealing with the relative rights of these two parties as they originally stood. But Mrs. Ousset, confessedly, executed an instrument which, on its face, very materially alters the respective rights of herself and Mr. Euvrard with reference to the custody of these children And while the testimony was taken in fragments, the main facts are about these:
Mr. Euvrard was living with his wife in Hoboken, a lady some years older than himself, and by whom he had no children. He was also maintaining another establishment, first in New York, and then in Jersey City, where the petitioner was living,—his mistress,—together with the three children whose custody is in question in this cause. This state of affairs continued until the summer of 1901, and at that time, I think first in July, Mr. Euvrard became suspicious that the petitioner, Celeste Mack then, now Mrs. Ousset, who bore his name as Mrs. Euvrard in the small circle in which she moved, was not faithful to him in tile way in which he naturally expected, and an estrangement occurred between them. In August or September Mr. Euvrard, while at the house early in the morning, had his suspicious very violently excited by a call which was made at the door by a little girl, I believe a niece of Mrs. Ousset, and a strange man. That man was not admitted. Mr. Euvrard and Miss Mack went upstairs, and the charge was made that this man was her lover. This testimony of Mr. Euvrard is undisputed. Mrs. Ousset was not interrogated about it at all. The result was that the petitioner did not deny this charge, —it does not appear that she denied it,— and Mr. Euvrard made a proposition that he should give her an establishment in another place, with the children, and pay her $60 a month, and that their relations should be ended. He testifies that the petitioner accepted this proposition; and thereupon a new house, on Highland avenue, was hired and furnished, and the petitioner and her children were installed there. Mr. Euvrard swears, and it is not contradicted, that he never visited Miss Mack, the petitioner, intimately, at this new establishment. He says that he warned the petitioner that, if any man came to that place, he would immediately cease supporting her. That was the drift of it. Thus they were separated before any part of the principal transaction took place with which we have to deal. Well, in September or early in October, according to Mr. Euvrard's testimony, Miss Mack stated that she had communicated with her mother in France, and that she wanted to go to France, and the question of the further disposition of this household came up between these two people. Mr. Euvrard positively testifies that he gave Miss Mack her choice: he, Mr. Euvrard, would take the children absolutely, or he would allow her to take them with her to France, and there he would provide for the support of the mother and children. Here we have a flat contradiction in the testimony. Mr. Euvrard's testimony is that, after hesitation, Miss Mack concluded to go to France, and that he should take these children. It is admitted, I think, by both Bides, if not it is most positively proven (there is no controversy about it), that Miss Mack was expecting that Mr. Euvrard would come and take these children from her house, this place in Highland avenue, and that she would go to Europe. Mr. Euvrard went to the house on the 5th of October, with a carriage, and took the children away to his own house. He took with him toMiss 'Mack a written instrument, which was put in evidence in this cause, and it is admitted that that instrument was signed by both parties at that time, and by that written instrument Miss Mack, in the most absolute manner, transfers all her rights of custody to Mr. Euvrard, and Mr. Euvrard assumes the custody and control of these children, and responsibility for their education and nurture.
There is no doubt about what the meaning of this instrument is; it is perfectly plain. The first question that comes up is as to its legal effect. This was a matter not discussed by counsel; perhaps they did not deem it necessary to go into it. But we have before us an instrument executed by the mother of these illegitimate children, whereby she undertakes to transfer all her rights to the putative father, and he undertakes to assume all her duties. The question is, what is the exact force of such an instrument? No cases have been cited. Anciently the English law seems to have been settled that a father, having the right of custody to his child, not having waived it or forfeited it, could not transfer that right to another party, even to the mother. The courts seem to have held very generally that such transfers were void. That rule of law, so far as it was established, was afterwards abolished by an act of the English parliament. I do not find that it has ever been recognized as law in this state. I certainly should be unwilling to follow it, in the absence of very clear authority. I do not see why a father should not execute a valid transfer of his rights, in reference to the custody of his child, to a person competent to take the custody of the child. The instrument may be void as to the child. It may be conceded that the law will not support any instrument whereby a parent, charged with the duty of maintaining his child, uudertakes to transfer that duty to somebody else. He may not be able to transfer the duty; but that he cannot transfer the right, it seems to me, is a proposition that is without any support in true ethical principles; and, as I understand it, the proposition has been practically abolished by the English parliament, as I have said; and in all our divorce legislation, and in all our divorce practice, which deals with the status of children conceived in lawful wedlock, any such principle of law has been disregarded and overruled long ago. Now, while our legislation does not relate directly to the status of illegitimate children, I see no reason why the mother of an illegitimate child should not make a contract with the putative father by which she transfers ail her rights of custody to the father. She may not be able to make any instrument which will transfer her duties, so far as the law charges her with the duty of supporting her child. It may be conceded that she cannot by any instrument evade that obligation, and that that obligation can be enforced by the court on behalf of her child, in spite of all the instruments of transfer that she might see fit to make. But we are not dealing with that situation here. We are dealing simply with the question of a transfer of a right, and I cannot see any reason why the mother of an illegitimate child should not make a transfer of her right to the putative father. Such consideration as I have given to the matter inclines me to think that there are more reasons to sustain such an instrument than there are to sustain a like instrument executed by a father of a legitimate child, undertaking to vest the custody of a child in the mother or in a third party. In the case of parents of legitimate children compelled to live apart, the law does not favor their living apart; and all through our decisions, especially the older ones, runs the principle that the law-disfavors agreements between husbands and wives agreeing to live apart. That is not the situation in the case of an illegitimate child. The mother and father have no right to live together. Their continuing to live together is immoral, and even criminal, and they are doing their duty when they are providing for the disruption of the unlawful relations which they have maintained with each other during the period when the child or children were born.
Now, then, in this case these people, who were living together unlawfully, whether their motives were good motives or neutral motives, or whatever the motives may have been, severed their relations and undertook to live apart. These children had to be provided for. I know of no reason why, when the mother and father of illegitimate children separate, as in obedience to the law of the state and of the moral law they are bound to do, and they remain bound to take care of the offspring of their illicit cohabitation,—I see no reason why the custody of the children should not be awarded by contract to the one or the other of them. I see no reason why the mother of the illegitimate children should not say to the father, "Take these children; you can do better for them than I can." It Is '"Be that if nothing is done, if no arrangement is made, the law gives the custody of the children to the mother, the main reason being that there is no father of an illegitimate child; so the custody of the child is given,'as a matter of natural right, to the mother. I said that was the main reason. No, I will correct that. There is a strong reason in addition; the mother has borne these children, and her relation to them is more tender than that of the man who procreated them and who is not their recognized father. In the absence of any agreement between the parties, there are plain reasons—important reasons—which underlie the law which gives the custody of the child to the mother. But I do not see why an agreement made by the mother transferring her right of custody—not undertakingto transfer absolutely her duties as against the children, but transferring her right of custody—to the father should not be upheld by the courts. In the absence of any authority to the contrary, I shall hold that it was competent for these people, in the situation in which I have described, to enter into an agreement like that proved here, by which the mother transferred the custody of the children to the putative father. Now, such an agreement was made, and it should be enforced, unless the interests of the children require that a different course should be taken. If the mother came forward in this case, and showed that, by enforcing this instrument and giving the custody of the children to the father, their interests would suffer, I should not hesitate a moment to advise an order giving the custody of these children to the mother, on the ground that it was her duty to take care of the children, and that she could not strip herself of that duty by the execution of an instrument, on the principle I referred to a little while ago,— the principle applying to the case where the father of a legitimate child undertakes to make a transfer. Such transfers under our law, in my judgment, are valid as between the parties, but invalid as against the interests of the children; so that, if the enforcement of the transfer is shown to be injurious to the interests of the children, it will be declared void and set aside as to them. But, of course, no such claim can be made in this case. I think, therefore, that this instrument must stand; and the decision carries with it the custody of the children, and vests that custody in Mr. Euvrard, unless the petitioner has succeeded in showing that the agreement was not her voluntary agreement, but was obtained by fraud or threats or duress of any kind.
I shall not undertake to go over the testimony upon that branch of the case. It would take a very long time, and I could only refer to different parts of the testimony in a very discursive manner, as I have no notes of the testimony, and made no digest of it at all. But after giving the testimony the most careful study possible on that point, I have reached the firm conclusion that Mrs. Ousset fails to show that this agreement was not an entirely voluntary agreement upon her part at the time she executed it, and fails to show that there was any duress or fraud or element of unfairness about it. It is true that the agreement was made in Mrs. Ousset's house—Miss Mack's house then—on Highland avenue, this place where Mr. Euvrard had placed her and her children, in the presence only of the two parties, Mr. Euvrard and Miss Mack. It does appear, however, that Mr. Euvrard had recommended to Miss Mack that she consult counsel. The testimony is not as full on that subject as it might be, but Miss Mack admits that in her own testimony, and it is a very important matter. It is true that Miss Mack was apparently depending upon Mr. Euvrard for her support. He occupied a position of power. He occupied a position, although regarded unfavorably by the law, nevertheless he occupied a position toward this young woman which gave him great control and great influence, notwithstanding the fact that their intimate relations had ceased and they were estranged. Mr. Euvrard was in a condition to exercise considerable power over this woman. I am not sure but what, if the question were strictly between these parties, it might not be held that Mr. Euvrard failed to show that this agreement was such ah agreement as the law would enforce. But Mr. Euvrard's story is a very straight story, from the beginning to the end. He has told, as it seems to me, frankly and fully, everything that took place. His testimony bears upon its face the marks of truth. And, if his story is to be accepted, then Miss Mack knew just exactly what it was,—had a fair choice presented to her: she could go to France with her children, or she could go to France alone, and he (Mr. Euvrard) would take care of the children. And Mr. Euvrard says that that was a matter that was under contention between them; and there are a great many indications in the testimony that that is true,—a great many things to corroborate it, that that was the matter in dispute between them; and Mr. Euvrard insisted that, if he took the children, he should take them absolutely. Is it conceivable that a man in his situation would make any other bargain? He was maintaining his own house in Hoboken, with his lawful wife, a woman somewhat older than himself. They had no children. Before he undertook to take these children he says he consulted his wife, and that she agreed to take these children. She comes on the stand and corroborates that statement. Now, is it possible that a man breaking with his mistress, as Mr. Euvrard did, and providing for the support of his illegitimate children by that mistress, that he, in addition to arranging to take them to his own wife, would provide that this mistress should come to see them,—have anything to do with them? It seems to me that that is incredible. The story that Mr. Euvrard tells on its face is credible. It may be said to be incredible that a man could make this arrangement,—to take his illegitimate children to his own home, where his own wife was; but it is idle to discuss that feature of the case, because it is beyond dispute that Mrs. Euvrard was willing to take these children, and did take the children, and has since maintained the children in her own household, and the apparent improbability about that part of the story is eliminated. It is a fact in the case that Mrs. Euvrard was willing to receive and did receive them, and wants to retain them. The question is whether Mr. Euvrard, who evidently must have found out whether he could do this thing or not, would be willing to make an arrangement with this woman that he was breaking from for good, by which she could come to his home to see the children. It seems to me very improbablethat he would make such an arrangement, or falsely represent to the petitioner that she might do that thing. She is an intelligent woman, and she presumably would perceive that Mr. Euvrard could not make any such arrangement in his own household, and with his own wife, by which these children should vibrate between their mother, their adopted mother, and their real mother, who was the mistress of their father. The story, therefore, that Mr. Euvrard tells is apparently a truthful and consistent story; and the story which Miss Mack tells is, to my mind, a somewhat incredible story, and would have to be supported by evidence, and it is supported by no evidence except her own.
But I cannot go any further into the details, because I have no notes of the testimony before me. My intention was merely to state my conclusions on that one point, namely, that this instrument was executed by Miss Mack with full knowledge of its contents, and with intent to accomplish precisely what it purports to accomplish, namely, the transfer of her rights as mother of these children to Mr. Euvrard. But there is one, it seems to me, insurmountable difficulty in the way of yielding to any attack that Mrs. Ousset makes in this case on this instrument. Her whole attack is based upon her own testimony; and she admits, and her counsel admits, that in the trial of this case, in giving her testimony, and for the purpose of protecting herself from Inconvenience and annoyance, she deliberately and intentionally swore to what she knew was false. Now, if she was willing to do that, would she hesitate to invent any kind of a story to accomplish the more important objects that she has in view in this litigation? How can the court make an order in this case, based solely upon the testimony of Mrs. Ousset, adjudicating that this instrument was vitiated by duress and fraud, as she charges, when the sole witness of all the facts and circumstances upon which such an adjudication must rest admits that she has perjured herself in the case? It seems to me that if ever the principle, "Falsus in uno, falsus in omnibus," applied, it is to this situation. Mrs. Ousset's testimony has to be excluded from consideration, and, the moment you exclude her testimony, then we have the uncontradicted testimony of Mr. Euvrard supporting the instrument, which speaks for itself.
I have preferred to deal with this case mainly with reference to the interests of the children. Mr. Euvrard appears to be a man of considerable means, with a very comfortable home and a prosperous business, and abundantly able to take care of these children, able and willing to give them all the advantages of education, and to adopt them even as his own children, and make them his heirs. And this plan is fully acquiesced in by his wife. They both testify that they are fond of these children. There seems to be no reason to doubt that, by leaving them with Mr. Euvrard, they have the advantages of a happy, comfortable home, with as bright prospects for the future as most young children have. On the other hand, if these children are given over to their mother, it is difficult to tell how they will be placed or what will become of them. The mother comes here alone into this court. She says that on the 16th day of October, about 10 days after these children were taken and she executed this agreement, she married, and she describes her present life, her present means, and the avocation of her new husband and his means. She says that they live in what is practically a tenement house in New York; that she goes out and acts as cashier in a restaurant, and that he works as a watchmaker downtown. Who is to take care of these children we do not know. It is a significant fact that while this case was continued from day to day, and doubts were cast upon the truthfulness of Mrs. Ousset's testimony, her husband's means, his avocation, and every possible opportunity was given her to clear away those doubts, no witnesses are brought here to corroborate any of her statements. She is obliged to admit that she told what was false in stating where her husband worked. She gave one number in Nassau street, and then admitted that she had falsely testified in respect to that, and then gave another number, and then proofs were given here showing that the new number was probably as fictitious as the old; and yet she made no further effort, and who this man is whom she married we do not know. We simply have to take her statement that he is a watchmaker earning $22 a week. After the falsehoods which sue has told, and which have been proved or she has admitted, we simply have to throw out this testimony altogether. The husband may be what one of the witnesses learned,—although it is a matter of hearsay,—a bartender somewhere.
This court cannot, upon the petitioner's testimony, take these little children from this home of comfort and luxury, where their prospects are so bright, and give them over to the mother, who will take them to a tenement house in New York, and where they will be subjected to the control of a man, a stepfather, or quasi stepfather, of whom the court knows nothing,—this mysterious person who is kept out of court, and about whom the petitioner tells falsehoods. How can the court do that?
It is worth while, perhaps, noting that the application in this case was not made promptly to the court. The contention between the parties arose very promptly after the execution of the agreement and the removal of the children. The difficulty in the recorder's court occurred, I think, in November,and after that this woman seems to have obtained employment in New York; and yet these children were allowed to remain in the custody of Mr. and Mrs. Euvrard for, I think, two months before this petition was presented.
Mr. Armstrong: Three or four months.
The Court: Yes; and during all that time these children naturally were becoming attached to their home and to their new parents. The application was very late indeed. There is a great deal about the laches on the part of the petitioner to justify the court in finding that she waived her rights. But it perhaps is not necessary to strengthen the cause by imputing laches to the petitioner, which possibly might be explained.
For the reasons that I have endeavored roughly to indicate, an order will be advised that the custody of these children be awarded to the respondent.