Summary
In Warnecke v. Lane, 75 A. 233 (N.J. Ch. 1910), where two children had been placed with their grandparents since birth, and at the time of their father's application for restoration they were five and eight years respectively, the father's application being denied partly because of his immoral character, notwithstanding which he was granted a right of visitation and the right to renew his application at an appropriate time.
Summary of this case from Lavigne v. Family and Children's Socy., ElizabethOpinion
01-20-1910
WARNECKE v. LANE.
Gaede & Gaede, for petitioner. James J. Quill, for defendant.
Habeas corpus by Henry J. Warnecke against William B. Lane to recover possession of certain minor children. Relief denied.
Gaede & Gaede, for petitioner.
James J. Quill, for defendant.
STEVENSON, V. C. The controversy is over the custody of two female infant children about five and eight years of age, respectively. The children are in the custody of their grandfather, William B. Lane, the father of their deceased mother. The writ of habeas corpus is issued at the instance of Henry J. Warnecke, the father of these children, for the purpose of having them transferred from the home of their grandparents to his own home.
The statutes regulating and enlarging the jurisdiction of the Court of Chancery to control the custody of minor children, where the controversy is between the parents of the children, do not apply to this case. The Court of Chancery gets jurisdiction of the case by having the infants brought before the court by the writ of habeas corpus. The court, however, is not confined to the liberation of the children from any possible restraint and the protection of them from improper interference after the proceedings in court have been concluded. The return to the writ and the traverse which the petitioner was allowed to make present to the court the whole matter of the custody of these infants, and the court, therefore, will exercise its well-settled jurisdiction to determine, award, apportion, and control their custody precisely as if the controversy were between parents. Richards v. Collins, 45 N.J.Eq. 283,17 Atl. 831, 14 Am. St. Rep. 726 (Errors and Appeals, 1889); Baird v. Baird, 21 N.J.Eq. 384 (Errors and Appeals, 1869).
I am not aware that any natural original right of custody in a grandparent which limits the parental right of the father has ever been recognized by our law. Controversies over the custody of a child between its father and the parent or parents of its deceased mother are frequently brought into this court. Sometimes the father's relations with the grandparents have become embittered. He has married again, and, not regarding the manifest interests of his child, he cuts the child off from all intercourse with its grandparents. A limited right of custody, at least to the extent of reasonable visitation, it seems to me, might well be accorded to a grandparent in many of the cases of this class. The authorities, however, so far as I have examined them, seem to place the grandparent in the position practically of a stranger, where the father stands before the court with his common-law right to the custody of his child unimpaired. No original right of custody or visitation in this grandparent will be recognized in this case, if, indeed, such right exists in any form in any case. If the father of these children has not waived or forfeited in any way his parental right, he is entitled to the custody of his children, although it may be that it would be greatly to their advantage if they could retain their home with their grandparents.
My conclusion from the testimony is that the father, by his conduct from the birth of the oldest child until the death of the mother, in September, 1909, abandoned and waived in favor of the grandparents the custody of these children, and that now the court has full power to make orders regulating their custody, based substantially upon what may appear to the court from time to time to be to their advantage. Richards v. Collins, supra. The story of his married life, which this father tells without the slightest hesitation, indicates that he is deficient in moral sense. Shortly before the birth of the older child, he was induced to marry its mother, plainly in reparation for the wrong that he had done to her. He testifies that he told her that he "would not marry her unless she understood" that "he was never to live with her," and he adds: "She took up the proposition, and said that I need never live with her as long as I supported the child." He made it a practice to visit his wife from time to time, during one considerable period at least, once a week. He states that his wife often asked him to come and live with her, and that he refused. The couple were both minors when the marriage took place. The husband is now about 29 years of age. During the period of about nine years while he maintained these singular marital relations with his wife, she bore to him the two children which are the subject of this present controversy, had another child which died, and suffered a miscarriage. The husband and father left the family in destitution. The wife appears to have been fond of him, and would apparently have been glad to establish with him a comfortable home. Through proceedingsinstituted by the poor master this young husband was obliged at an early period of the marriage to pay half of his income, amounting to $3 per week, for the support of his wife and children. At the present time he testifies he earns $25 a week, and has received that wage for a period which extends back prior to the death of his wife for two or three years. And yet the evidence shows beyond all doubt that for years preceding the death of the wife and mother she and her children were largely dependent for food and clothing upon her father, the respondent in this suit. The prosecutor represents that he paid a weekly stipend of "from $8 to $10" for the support of his wife and children, and seems to have considered that it was a matter of no consequence where they obtained their food and clothing. He plainly declares that he considered that the contribution of $8 or $10 per week was a full discharge of all his obligations to provide for his family. In my judgment he overstates and misrepresents the extent of his contributions; but according to his own story it would seem that for some years prior to his wife's death, while he was earning $25 per week, he paid about a third of his wages for the maintenance of a wife and two children, while he apparently appropriated two-thirds to himself. I think it is abundantly shown that, for years prior to the death of the mother, she and these children were to a large extent supported by the respondent, and that the residence of the respondent was the only comfortable home which they had. According to uncontradicted and reliable testimony, the little family, so far as they did not live with the respondent, lived in squalor and wretchedness.
It is a curious circumstance that the prosecutor does not offer any evidence that he knows these children by sight, or that he ever personally did anything for them, or that he has any affection for them or they for him. The court cannot infer that there is any parental love between these children and their father, when the only home life that he ever had in which they could share, according to his own story, consisted of visitations for an hour or two, in the evening or at night, to their mother. This man in his testimony has no hesitation in evincing a willingness to have any number of children by his wife, for whom he would not establish or maintain any home life; the sole obligation on his part to wife or children being to provide money for their support. Even that obligation the proofs show he failed to discharge in a most shameful manner. The. wife and mother upon her dying bed commended her children to her parents, and after her death they were taken to the respondent's home. That home in fact had been practically theirs for a long time. A few days after the death of the mother the father demanded the children from their grandmother, but made no other effort to get them or interfere with their life with their grandparents for about six weeks, when he sued out this writ of habeas corpus.
This is not a case where the Court of Chancery is bound to recognize and enforce the common-law right of the father, without regard to the interests of the infant children. When we compare the two homes which are offered to these children, the balance of advantage is very greatly in favor of the home which they have with their grandparents. The father testifies that he wishes to take the children to the home which he is maintaining with his mother, an elderly woman incapacitated in part by rheumatism, whose relations to these children are not shown. She was not sworn as a witness. No description of the home which the children would have with their paternal grandmother has been presented to the court. The court is simply asked to surrender these children absolutely to their father, in recognition of his common-law right, upon the mere proof that he is able to support them either at his mother's home or elsewhere, as may be expected in the case of a father who earns $25 a week. The income which supports the home of the grandparents seems to be about the same amount They are industrious people of excellent reputation, and they desire to keep and care for their grandchildren.
My conclusion is that for the present the general custody of these children should be awarded to the grandfather. Reasonable visitation with the father will be allowed. If the father wins the affection of his children, as he ought to endeavor to do, his opportunities for having them with him will be enlarged. Changes of circumstances may at any time occur which will make it proper to give the father the general custody of his children. The order will contain appropriate reservations which will make it possible for either party to apply to the court for a modification or radical change of the order which will now be made. The details in regard to the visitation, as well as other details, may be attended to on settlement of the order.