Opinion
No. 42/447.
08-02-1922
WILLIS v. WILLIS.
Lewis Starr, of Camden, for petitioner. Peter Backes, of Trenton, for respondent.
Proceeding to secure custody of a child by Bobinson Forrest Willis against Blanche Browning Willis. On motion to show cause why petitioner should not have partial custody of the child. Instructions for preparation of order given.
Lewis Starr, of Camden, for petitioner.
Peter Backes, of Trenton, for respondent.
LEAMING, V. C. (orally). Probably the most difficult questions that come before this court are questions of this nature. Unquestionably, in the absence of controlling circumstances, the father's right is precisely the same as the mother's. The statute says so in express terms. It is also to the best interest of the boy that he have the love and affection of both parents. No child suffers from too much affection from his parents, and the more that can be done by this court to insure an interest upon the part of both parents in the child the better it will be for the child.
The petitioner in this case, the father, is entitled to the relief which he seeks; but it requires a high degree of judgment to determine how that relief is best given. I am convinced I would be wrong in making an order today directing that the custody of the child be given to the father, even temporarily, even for periods of a very few days. That view is based upon the circumstance that the father is now practically a stranger to the child, and I would not feel justified in directing the mother to send her boy to the home of his father, while the father is so nearly a stranger to the child. Before the father can claim that right, I think he must show such an interest in the child that will result in the child and his father at least becoming acquainted.
The order which I will advise in this case will be an order extending to the father the broadest right of visitation that can be suggested by counsel in the order to be prepared, with a provision that, if the father avails himself of the privileges there given to such a degree as to manifest an adequate interest in the child, then an order will be made providing for the father to have the custody of the child in his home at some periods to be determined upon, periods that will not interfere with the child's education or other interests. But I think, before the privilege of the father to enjoy the partial custody of the child is definitely determined upon, there should be some real acquaintance between the father and his child, so that the child will not be practically ushered into a stranger's home. And I think, too, that if, between now and the time when the subsequent order could properly be made, the father has not availed himself of his privilege, and has not visited the' child often enough to show that degree of interest to justify an order of the kind now sought, an order for partial custody should be denied; in other words, I think the present order should in effect make it obligatory upon the father to visit his child frequently, to win, not only the child's acquaintance, but his affection, and, if possible, to induce the child to be anxious to go home with his father.
In the meantime the mother should refrain in every way from in the slightest degree poisoning the mind of the child against his father. It will be impossible for the father to win the affection of his child, if the mother teaches the child to dislike the father. That she must not at any time do. She must not at any time make a suggestion or intimation to the child of the differences that exist between her and the child's father. If she speaks of her husband at all in the presence of the child, she must do so in a pleasant and happy way; otherwise, she may be denied the right of custody, because she will not be a fit custodian, if she poisons the mind of the child against his father.
I will fix a period of two months' probation to see what real interest this father has in his child, and what he can do during that time to win the affection of the child, and then, if be has shown the proper spirit, and has accomplished what he should accomplish in that time, he may have the custody of the child a reasonable portion of the time. If counsel will draft an order along those lines, I will be pleased to advise it.
Mr. Starr: Will that right of visitation include the right of the father to be with the child separate and apart from the mother?
The Vice Chancellor: Certainly; he may take the child out on little trips. I mean the broadest right of visitation that can be provided. Give the father a chance to win the affections of his child, and deny the mother the right to interfere; and if he wins bis child's affections, then he is entitled to his partial custody. If he does not care enough for the child to avail himself of those privileges, and it is charged that he has hot in the past, he is not entitled to the child's partial custody.
Mr. Starr: If your honor please, Mr. Willis is now practically in the care of a physician and has been ordered away. Would your honor make the probationary period four months?
Mr. Backes: Make the probationary period commence when he returns from his vacation.
Mr. Starr: Yes; I think he is going to New York state for two months; he has some heart trouble.
The Vice Chancellor: His exercise of the right of visitation, of course, is dependent upon his own ability. He might be sick. Anything of that kind may be taken into account.