Opinion
Submitted February term, 1939.
Decided April 21st, 1939.
The former husband of the petitioner obtained a decree of divorce from her, and in that proceeding was also awarded the custody of their infant son. The husband died soon after, but prior to his death he and the infant lived with his parents. Petitioner had meanwhile married a divorced man having two infant children. Held, under the proofs in this case, that the order awarding the custody of petitioner's infant son to his grandparents, and providing for visitation by the mother, was justified and is entirely correct.
On appeal from the court of chancery.
Messrs. Rospond Rospond ( Mr. J. Thaddeus Rospond, of counsel), for the petitioner-appellant.
Mr. David A. McBride, for the defendants-respondents.
This is an appeal from an order advised by Advisory Master Matthews awarding custody of an infant child to his grandparents rather than to his mother. The petitioner, Elizabeth D. Brown (formerly Smith), sought custody of her infant son who was in custody of his grandparents. Harold W. Smith, now deceased, father of the child and former husband of petitioner, obtained a decree of divorce from his wife, Elizabeth, and in that proceeding was also awarded custody of their infant son. About a year and a half later said Harold W. Smith died. Prior to his death he and the infant lived with his parents.
Ten days after the final decree of divorce the mother, Elizabeth D. Smith (now Brown) married one William T. Brown. a divorced man, presently paying alimony to his former wife and having two children, aged eight and six years, respectively. The infant son of the petitioner over whom contest was waged is ten years old, and still lives with the grandparents who were the respondents in the court below.
We have carefully examined the proofs in the case and think that the order advised by the learned advisory master awarding custody of the boy to his grandparents, and providing for visitation by the mother, was justified and is entirely correct.
The decree will be affirmed. Costs are not awarded.
For affirmance — THE CHIEF-JUSTICE, PARKER, CASE, BODINE, DONGES, HEHER, PERSKIE, PORTER, HETFIELD, DEAR, WELLS, WOLFSKEIL, RAFFERTY, HAGUE, JJ. 14.
For reversal — None.