New-York tribune., 1916-02-29
Decision of 1912 Fails
Preacher Who Refused
to Give Up Child.
RULING SHOWS
WOMAN'S PROGRESS
No Longer Slave, Says Shearn
as He Upholds Agreement
Over Custody of Lad.

But the world has moved since
1912" said Justice Shearn in q decision
yesterday.
II will be moved still further to-day
by the judicial dictum Of Justice Shearn
that woman may marry and stu re-
main on a parity with her husband, for'
as the court says, she is no longer q
slave or chattel.
The Rev. Burton Lee, formerly CHAP
lain at Sing Sing Prison. refused 70
surrender the custody Of his four and
a half-yesr-old son to his wife after
they separated, although there was an
agreement that he should have their
eight-year-old son and Mrs. Lee the
younger boy.
Mrs Lee svore out a writ of habeas
corpus, and Justice Shearn yesterday
upheld the claim of the wife TO the
custody of the child, dismissing the
heretofore accepted theory that the
father has a paramount claim over the
children Of a marriage.
at is claimed that a father has the
paramount right to the custody OF q
child" said the court. This was the
theory on which Mr. Lee refused 70
carry out the terms Of the agreemen
with his wife.
"Once this was the law he con-
,inued. "but we have emerged from the
dark ages during which married women
had the status OF slaves and chatteis'
The only basis for the fathers alleged
superior righ. to-day is mis- obligation
TO support his children. This OASIS
disann,ars when one considers what
the mother gives TO her children IN
suffering. seif-sacrihce and devotion
IN anv admeasurement Of rights deter
mined by service rendered, the right OF
q mother to the custody of her children
is At least equal to that OF the father;
The real test should be the welfare or
the child
Mr.. Lee, in refusing to live up 70 tne
t.rms ~ The agreement with his wi1e.
argued that the covenant was not valid
and not binding on him, basing ms
Contention on the case OF the People
OK rel. Barry against Mercein, wherein
il was held that the father could NOT
bv agreement ALLEVIATE 10 his "iie inc
custody Of their children. A.,
"That was sound law when the Mer,
cein case was decided in lS42,' SAID
wbether the Mercein case has any
binding force to-day, we must have
regard for the changed status OF a
vie in the eyes Of the law to-day as
compared with 1892" u
The Justice quoted from the Mercein
Ease decision: THE very being ana
legal existence of the woman is sus-
pended during the marriage, or, a.
ieast is separated and consolidated
into that OF the husband. Their reia-
tive mower over the person of the chiio
follows in consequence. A man cam
mot grant anything TO his wife, or
enter into a covenant with her. for the
grant would be to suppose her separate
Existence. and 10 covenant win ner
would be only covenant with himself.
Continuing his 1916 opinion on the
court decision OF 1912, Justice Shearn
said But the world has moved SINCE
IS.2 |, is not to be believed that to-
day any enlightened court would sub sub.
scribe to the statemenr that the very
being or legal existence Of the woman
is suspended during the marriage, OF,
at least, is separated and consolidated
into that Of the husband By the ex-
press of .he Legislature the wife, can
at least contract with her huspand tne
same as if unmarried. except that they
cannot alter or dissolve the marriage
and she cannot release him from his
obligation to support her.. =,
Justice Shearn sustained the CLAIM
of Mrs. Lee for the custody OF ner
husband. which ais" provided that MT
Lee is to have the boy with him Tor
week ends, which right is given Mrs.
Lee in regard to the older son. who Is
in the custody Of the clergyman. MIS-
Lee accepted Sl2 week alimony.