Paddock v. Eager

Dykman, J. This is a proceeding under a writ of habeas corpus for the procurement of the custody of an infant child, and the controlling facts are these: The relator was married to Jennie H. Eager, the daughter of the respondent, in June, 1881, and she died in May, 1889, leaving an infant daughter, named Grace Paddock, who is now nearly eight years of age. She was born at the home of the respondent, and has lived with her most of the time since. The relator failed to support his wife after his marriage, and she lived at her mother’s, and died there. The respondent is a woman of wealth and refinement, and she has reared this child from infancy, and has become attached to it by the closest ties of love and affection, and the attachment is mutual, and the child, who was about seven years of age when she was examined in this proceeding, expressed the strongest desire to remain with her grandmother, and she is not too young to have a choice. Until this time the father never sought the custody of his child, and she remained with the respondent not only with his assent, but from positive necessity, arising from his failure to furnish her support; and even now he has no home, no household, and no means, and earns only about $17 a week, which can be but little more than sufficient for his own maintenance. What is perhaps worse than all, he proposes to compel this child to live with his father and step-mother, who are entire strangers to her, and who have, and can have, no affection for her, and who, in common with the relator, entertain extreme hatred and resentment towards the respondent and her family. So that it comes to this: The relator, after his' long neglect of his child, expects this court to remove her from the only home she ever knew, where she is surrounded by wealth and affection, and where her young life has been made happy, and where she has been nourished and cherished with a solicitude and a wealth of affection, born of the love entertained for her unfortunate mother, whose untimely death they attribute to her husband, and deliver her to him, to the end that he may place her with his step-mother, where, so far as we can see, she will experience only the absence of all her present comforts, and the deprivation of all her future prospects. Add to all these considerations the dying request of a broken-hearted mother, and the case is before us. It may be stated preliminarily that we find no room in this case for the operation of the writ of habeas corpus, whose office is to release persons improperly restrained and deprived of their liberty. This little girl is under no restraint, and suffers no deprivation of her personal liberty; on the contrary, she is where she would be, and she desires to remain where she is, and she enjoys the utmost freedom. But the relator bases his application upon his natural rights as the father of the child, and demands her surrender to him because she is his child, and the order appealed from was doubtless granted upon that theory. As we have already said, the office of the writ of habeas corpus is discharged by allowing the party detained to go free and exercise his volition, but in the case of a child, incompetent from infancy to exercise proper discretion, the courts sometimes undertake to determine for it, and then the welfare of the child is the paramount consideration which controls the exercise of the discretion of the court. The rights of parents are to be subordinated to the interests of the child, and to be regarded no further than they are in harmony with its welfare. They have no paramount right to the custody of their children which they can enforce against all other considerations. In re Waldron, 13 Johns. 418, was a case much like the present, where an infant was in the custody of its grandfather; and it appeared that it would be more to the benefit of the infant to remain with him than to be put under the care of the father, and no improper restraint was shown. The court refused to direct the infant to be delivered to the father. The same doctrine is to be deduced from the case of Mercein v. [712] People, 25 Wend. 64, where the whole subject underwent a most exhaustive examination in the late court for the correction of errors. To the same effect is People v. Kling, 6 Barb. 366; People v. Wilcox, 22 Barb. 178; In re Welch, 74 N. Y. 299; Wilcox v. Wilcox, 14 N. Y. 576; Brush v. Brown, 35 Hun, 324. The foregoing principles are well settled, and run through all the cases, and the light cast by them upon this case renders it plain and simple. There is scarcely a pretense that the interests of this child will be subserved by her delivery to her father. Moreover, it is not her interest which he seeks to promote, or her happiness which he desires to secure or advance, but his action is evidently incited by malevolence of purpose towards the respondent and her family. He does not expect to have his child with him, or to enjoy her society, but he desires to remove her from her home where she was born, and where she is environed with refinement and morality and virtue and wealth, where she will be nurtured and educated, and enjoy the care and protection of those who are of her blood, and bound to her by ties of nature and association, aud where she desires to remain, and place her with his step-mother, who is not of her "kindred, who can entertain for her no natural affection, who does not desire her, and to whom she will be a burden, where she can receive none of the advantages which wealth and refinement can supply, and where she will forfeit the pecuniary provision made for her by her mother’s will upon condition that she remain in the family of the respondent. Under such circumstances, and in view of all the facts and the surroundings of the case and the parties, the natural rights of the parent must yield to the manifest interests of the child, and she must remain in the family of the respondent so long as she desires to do so. Her best interests will be thus subserved, and the order appealed from must be reversed, with costs and disbursements. Barnard, F. J„ concurs.