Morning herald. [volume] (New York [N.Y.]) 1837-1840, 1840-10-28
NEW YoRx, Oct. 20, 1870.
Supreme Court.
The PEoPLr, ON THE RELArioSoF>
JONI A. BARRY, To- c..
THOMAS X. MERcrIN.

JoHS A. BAKhY, (o.
By THE CovRr, BRoSsoS, Justice.
We have so recently considered some Of the
questions which arise in this case, that it cannot
be necessary examine them much at large on the
present occasion. Nothing which fell from the res
pondcnt's counsel has shaken the opinion we have
heretofore expressed, that in these unhappy contro
versies between husband and wife, the former II he
chooses to assert his right has the better title to the
custody Of their minor children. The law regards
him the he'd Of the family; obliges him TO pro-
vide for its wants. and commits the children to his
charge, in preference 10 the claims Of the her or
any other person. The People ". Chegaray, IS
Wendell, 637 The People, ex relat Nickerson, 10
Wendell, 10, and eases cited: See also, The King
v. Gfeenhill, L. Adolph. and Ellis, GA The King
'. Isley, 8 i'd. AL. Whatever sympathy we may
feel for this lady, however strongly we nav wish
that the reator had relinqushed his claim TO one Of
the two children, we have no choice but to admin
lister the law we find il.
In eases Of voluntary separation between husband
aud wife, there must Of necessity be some legal rule
in relation to the custody OF their minor children
mined by force. This would be likely to widen the
breach between the parties. And il it did not en-
danger the personal safety Of the children il could
hardly fail TO ALLEVIATE their affections frem one or
both Of the contending parents. Whether the COM
mon law has given just and proper rule, whether
better might not be devised, are questions whieh
do not address themselves TO our consideration.
On ha6sas corpus, the Court usually does no more
than TO relieve the party from all improper restraint
But in the Of children Of such years AZ 10
be unable to elect for themselves an order is made
in relation to their custody.
The right OF the father may be forfeited by mis-
conduct, or lost by misfortune; and when he at
tempts to assert by habeas corpus the Court exer
cises discretion, having regard to the welfare Of
the children, and may leave them in the custody Of
the mother or some other person, in preference to
the claims of the father. Matter Of McDovles, y
John 325 Matter Of waldron, Is John AIS. Mat.
ter Of Wollstoncraft, John. Oh. Rep 80. But this
nat frur RET, n 1ccu IN "A h.s
we please in relation to the custody. On the con.
trary deem IL well settled, that in the absence Of
any positive the part Of the father
for the proper discharge Of his psrenta duties and
welfare Of the children, for preferrns the mother
the father has a paramount right 10 the custody
which no court is at liberty to disregard.
In taking into confederation the probable welfare
OF the children, we do not presume, without proof
that IL will be best promoted by prcferring the mo-
Their. The law has settled that question the other
way, by preferring the father His claim cannot b.
set aside upos light grounds, or upon conjec.
ture that the interests OF the children require IT.
He must be chsrgeable with such grossly immoral
conduct as shows him plainly disqualified for the
proper discharge Of parental duties or else IL must
appear that in consequences Of disease, some other
misfortune, he wants either the capacity or the
means Tor the proper training Of the children ac-
cording to their circumstances and expectations in
lie And whatever may be the objection to the "a
thsr, they cannot prevail, the sa me objections or
the mother In short the claim oftbe father is pre-
ferred, until plainy appears that the interests Of
the children require II TO be set aside
In settling the question OF custody. we have uo-
thing do with the which led 10 the &c para
ration Of the husband and wife except As those can
affect personal character, and tcseh the opaIi6
cations OF the parties for the proper exercise OF the
parental Office. II we 20 beyond that, we vi.ats =
principle which lies at the foundation Of the whole
matter, by overlooking the welfare Of the children
for the purpose Of Furnishing one Of their parents.