Ex Parte Alsdorf.

• Decision Date: 11 June 1948
• Docket Number: No. 161/660.,161/660.
• Citation: 59 A.2d 610
• Parties: EX parte ALSDORF.
• Court: New Jersey Court of Chancery

59 A.2d 610

EX parte ALSDORF.

No. 161/660.

Court of Chancery of New Jersey.

June 11, 1948.

Proceeding in the matter of the application of Joseph W. Alsdorf for a writ of habeas corpus for his infant children Anne Elizabeth Alsdorf and Dana Evans Alsdorf, opposed by David O. Evans.

Decree in accordance with opinion.

Syllabus by the Court.

1. In habeas corpus proceedings to obtain the custody of children, the controlling consideration is the interest of the children; the welfare of the child rather than the parental right is the determining factor.

2. It is undoubtedly the law that unless the father has waived or forfeited his parental right to the custody of his children, or unless he is morally unfit or financially unable to properly care for them, he is entitled to their custody. But the Court of Chancery is not bound to recognize and enforce the common-law right of the father where the best interest of the infant children are involved. In such cases the Chancellor, as parens patria, exercises a general jurisdiction over the custody of the person of infants, and will award custody accordingly as the welfare of the infant requires.

3. The facts considered: Held, that the paramount and compelling interest in the children's welfare demands that they remain in the custody of the defendant-grandfather, subject, however, to the right of reasonable visitation of the father.

Albert Kushinsky, of Toms River, for the Writ.

Hyer & Armstrong, of Rahway, for defendant.

BERRY, Vice-Chancellor.

This controversy concerns the custody of two female infant children of about two and four years of age, respectively. The children are in the custody of their maternal grandfather, David O. Evans. The writ of habeas corpus was issued at the instance of Joseph W. Alsdorf, the father of these children, and he seeks their custody and their removal from the home of the grandfather at Holmdel, Monmouth County, New Jersey, to his (the father's) home in Mt. Vernon, New York. The controversy arises out of the following facts and circumstances:

The petitioner, the father of these children, married the only daughter of the defendant David O. Evans, in 1942. Her mother died when she was seven months old and she was brought up by her father in the home of her grandmother, and there was a strong bond of affection between the father and daughter. She married the petitioner, Joseph W. Alsdorf, against her father's wishes and her life with him was a rather hectic one; primarily, I believe, because he was unsuccessful in business and was always short of funds, as a result of which she was obliged frequently to call upon her father for help, which he always generously supplied. There is evidence, however, over the petitioner's own signature, that during his married life with the defendant's daughter, he had affairs with other women; but it was not shown that his wife was cognizant of this fact, and there is no doubt but that she was loyal to him until the last. He had a criminal record at the time of his marriage, having been convicted of forgery and larceny in 1939, for which crime he was sentenced to one year in the County Jail of Nassau County, New York, and apparently served out his sentence. In 1946 he was again in difficulties and was charged with having embezzled $1,500. The facts touching this episode are best stated in the opinion of Judge Anson W. H. Taylor of the Court of Probate, District of Greenwich, Connecticut, filed by him on an application of the defendant for removal of the father as natural guardian of his children, as follows:

‘The culmination came in May, 1946, when the mother of these children, taking her husband with her, went to her father's home to obtain $1,500. to prevent the conviction of the father of embezzlement or larceny on charges lodged in Yonkers, New York. At a long interview, first with his daughter and subsequently with his son-in-law, Mr. Evans finally agreed to let his daughter have a short-termed loan of $1,500 which would be repaid to him within a very short period out of the accounts receivable which were due to be collected. This was a Thursday evening and the next day he sent his daughter a check on a New Jersey bank for $1,500. The following Monday, May 20th, Mr. and Mrs. Alsdorf negotiated with the District Attorney at Yonkers for settlement by payment of the $1,500. against the withdrawal or cancellation of the criminal proceedings. The request was made that the check be certified. Mrs. Alsdorf took it to New Jersey and had it certified. The following morning, May 21st at the office of the attorney for the creditor, she exhibited the certified check made to her order but refused to indorse it until the withdrawal of the complaint and cancellation of the criminal proceedings were presented to her. While someone was in transit to obtain these papers, she was taken with a seizure and died.

‘It is quite obvious from this history that the feelings between the grandfather and the father of these children are irreconcilable. The certified check in question was deposited in the Estate of the deceased mother and the day after the first hearing in this proceeding, on some assurance to the creditor and the District Attorney and a Judge in Westchester County that the funds were deposited in the mother's estate, the criminal proceedings were withdrawn and cancelled, so that today this father has no criminal proceeding pending and the only criminal record actually existing is ten years old.’

Immediately after the mother's death, Mr. Alsdorf contacted a Mrs. Beatrice M. Fink, a friend of Mrs. Alsdorf's who was then in Florida, and who immediately came to Mt. Vernon, New York, and took custody of the children at Mr. Alsdorf's request. She testified that Mr. Alsdorf threatened to put them in a foster home but finally agreed to her taking them and agreed to pay for their support. She took them with her to a small apartment which she rented in Greenwich, Connecticut. At that time the younger child was five months old and the elder child one and one-half years of age. Mrs. Fink testified that she received two checks from Mr. Alsdorf in payment for his children's support, both of which were protested, and as a result of which she was without funds to buy food for the children. I do not place too much reliance upon her testimony as it is evident that she was imbued with that ‘fury’ for which the ‘woman scorned’ is famous, and she exhibited a very vindictive attitude toward the petitioner while she was on the witness stand. A letter written to her by Mr. Alsdorf and produced by her and offered in evidence, as Exhibit D-14, and the writing of which he acknowledged, indicates that he had previously had ‘an ‘affair’ of long standing' with her. However, it appears that the children remained with her until early in August 1946, when she claims that she could no longer support them, could not get in touch with Mr. Alsdorf and called the local police in Greenwich, Connecticut, who contacted the defendant, the grandfather of the children, informed him that they were starving, were not being supported by their father, and asked him to come to Greenwich, Connecticut, and assume their custody. He told them he would be glad to do so providing he could get a court order giving him the necessary authority. He was advised that that could be arranged, whereupon he went to Greenwich, Connecticut, and he and Mrs. Fink joined in an application to the Probate Court for an order removing the father as the children's guardian and committing their custody to the defendant. Such an order was made on August 9, 1946, by Judge Taylor. The physical condition of the children at that time was deplorable. The younger child, although then seven months old, weighed less than eleven pounds and the older child was seriously ill. The defendant-grandfather took them to his home in Elberon, New Jersey, called a doctor and a trained nurse and had the older child removed to a hospital, where she was treated for some time and later returned to the defendant's home in Elberon. The children remained there until the fall of that year, when they were taken by the defendant to his 600-acre farm in Holmdel, Monmouth County, New Jersey, and where they have resided ever since except for the summer months when they were taken to the defendant's summer home at Elberon, and except for a short time when they lived at another winter home maintained by the defendant at West End, New Jersey. Shortly after the custody of these children was committed to the defendant-grandfather, Mr. Alsdorf, the father, applied to the Court of Probate at Greenwich, Connecticut, for a revocation of that order, and after a two-day hearing, and on September 5, 1946, the order was revoked by Judge Taylor who made it in the first instance, he finding that there had been no abandonment, that there was not sufficient evidence of mistreatment of the children to justify his removal as their natural guardian, and, in his opinion, concluding as follows: ‘However, as indicated above, I can find no grounds at the present time, for removal of this father and I doubt that the temporary residence of these children for four weeks in the jurisdiction of this Court would warrant further proceedings here. The children are now located in New Jersey with their grandfather. The legal residence of the children and that of their father is in Westchester County, New York. If there is to be further litigation other than an appeal of this decision, I am confident it will have to be in either New Jersey or New York courts. I am therefore executing an Order as above indicated terminating the temporary guardianship.’

From the order of the Probate Court of Greenwich, Connecticut, on September 5, 1946, revoking the previous order of August 9, 1946, an appeal was taken to the Connecticut Superior Court, which appeal, I am advised, remains undisposed of. However, I am also advised that such appeal does...