Summary
In People ex rel. Lawson v. Lawson (111 App. Div. 473) the custody of children was taken from the mother and given to the father.
Summary of this case from People ex Rel. Wright v. GerowOpinion
March 16, 1906.
Frank Harvey Field [ R. Percy Chittenden with him on the brief], for the appellant.
Edmund L. Mooney, for the respondent.
The paramount consideration is the welfare of the children. ( People ex rel. Elder v. Elder, 98 App. Div. 244, and authorities cited.) They are not of years so tender as to require award to the woman because the mother is essential to their daily living.
The record of life with the mother is before us. It is not enough that the children have not been naked and have not been hungry. They should have received care like unto that which moves a parent not only to clothe and feed his child, but to train him up in the way he should go. There has been a lack of such tutelage. A child is apt to pattern its life after that of its parent. These children are old enough to be impressed with their surroundings, to be molded by the course of their parents' life, and to remember even what they may not now understand.
The lads have lived a life of hotels and boarding houses. Disinterested affiants describe the mother as gay, indiscreet, intemperate of speech and infirm of temper. They depose that her habits are not good; that she rises late, keeps late hours abroad, and passes much time in the society of men whose influence is bad. In short, these people say that she so demeans herself as to be censured by prudent persons, both for her carriage and for her neglect of her children, even to their bodily cleanliness. No reason appears why we should discredit these affidavits, and no sufficient answer is made to them. This proceeding, then, must be determined by them, and we must take the situation as they describe it. It is not necessary to attribute it to intention, for inattention may have caused it.
Though the father is the subject of counter attack, there is no such showing against him. He is affiuent. He offers his married sister's home, apparently one of educated and respectable people, as a home for his children, and his sister assents. The presumption is clear enough that the lads will be far better off there than in their present atmosphere. By this decision we do not prejudice the issues in the pending action for an absolute divorce. For the welfare of the children and the wrongdoing of a parent are quite different questions. The trial of these issues may reveal that the woman has been belied by these affiants, but we are clear that the question of custody as now presented must be determined in favor of the father. The mother should not be entirely cut off from access to the children, but should be allowed to visit them for two hours at a time, twice in each week.
The order must be reversed, and the custody awarded to the father, with such provision for access by the mother as we have indicated.
WOODWARD and MILLER, JJ., concurred; HIRSCHBERG, P.J., dissented in separate memorandum; RICH, J., took no part.
I dissent. As the case contains counter charges, and a former trial was decided in defendant's favor; as the present custody of the children is the result of the plaintiff's abandonment of them; as they are very young and no serious injury has apparently been occasioned by their mother's care of them, and as the case can be tried speedily on the merits if the plaintiff wishes, I think it would be wiser not to interfere with the discretion of the Special Term.
Order reversed, without costs, and custody awarded to the father, with such provision for access by the mother as indicated in the opinion of JENKS, J.