Ex parte Judge

• Decision Date: 19 May 1920
• Citation: 116 A. 720
• Parties: Ex parte JUDGE.
• Court: New Jersey Court of Chancery

116 A. 720

Ex parte JUDGE.

Court of Chancery of New Jersey.

May 19, 1920.

In the matter of the application of her mother by habeas corpus for possession of Anna Judge, an infant. Possession awarded to the mother.

W. Holt Apgar, of Trenton, for petitioner.

Eric H. Jentz, of Jersey City, for respondent.

BACKES, V. C. This habeas corpus was sued out by a mother to recover her 2 year old child. The mother was married at 15 to a worthless fellow, who deserted her shortly afterwards. She was destitute and friendless when the baby came, and in her despair gave it to Mrs. Grice, the respondent, to raise, when it was 6 weeks old. Shortly afterwards the mother, quite naturally, repented; but Mrs. Grice had disappeared from Baltimore, where these things took place, and no trace of her or the child could be found until just before this writ was taken out, when they were located at Jersey City. The indications are that Mrs. Grice, fearing a change of heart on the part of the mother, left with the child, to conceal its whereabouts, and to thwart any effort to regain its custody or to make the attempt difficult. I incline to this view because of the circumstances of Mrs. Grice leaving her home and husband in Baltimore, where he was regularly employed, months in advance of his return to Jersey City, their former place of residence, and this without intimation to the mother. There she palmed off the baby as her own flesh and blood. Her explanation of her hasty and covert departure, that she became homesick and did not like Baltimore nor its people, is, to my mind, a shallow pretense.

When the child was given into the care of Mrs. Grice, a formal and absolute surrender had not been agreed upon. That that was the aspiration of Mrs. Grice, and the contemplation of the distracted mother, is believable, but the juncture had not been reached. The two had consulted the authorities and were informed that under the laws of Maryland there could be no surrender until 6 months after birth, and the matter was left in abeyance. Had there been a renunciation in fact, it would not have been binding in law. The parental guardianship, by nature and for nurture, is not assignable. Mayne v. Baldwin, 5 N. J. Eq. 454, 45 Am. Dec. 399; In re Williams, 77 N. J. Eq. 478, 77 Atl. 350, 79 Atl. 686. Transfer by legal adoption is a statutory exception. But, were the law otherwise, a surrender could not, in conscience, be upheld because of the physical and mental disparity between the two women. It would be monstrous to hold this sick and sorely tried girl mother to the supreme sacrifice.

In its legal and moral aspects the mother's privilege was in no wise prejudiced by the negotiations with Mrs. Grice, which, at most, were tentative, and though the latter has by unstinted care and devotion created a reciprocal relation of keenest love and affection between her and the child, and though heartaches and sorrow will follow a separation, she must yield to the superior and natural right of the mother, unless thereby the well being of the child will be jeopardized. Instances may arise where, in attachments of this kind, courts will not interfere, but it will be found, upon an examination of the reported cases, that the parent's right will not be denied, unless the foster alliance was protracted, and acquiesced in in a spirit of abandonment, and a severance will be disadvantageous to the child. That is not the case here. While much sympathy is due Mrs. Grice, we must not be unmindful that her plight is self-imposed, nor of the infinite grief her rash conduct brought to the mother.

The infant's welfare, all matters considered, is paramount and compelling in the eyes of the Chancellor as parens patriÆ. The parental right, however, is never lost sight of as an influential and determining factor. If in a contest, as here, between a parent and a stranger in possession, for the custody of an infant of tender years, there is equality as to character, condition, habits, and surroundings of the claimants, the natural right will prevail; mere material advantage to the child will not count against the inherent right. The strict legal right will not be subordinated, unless circumstances of weight and importance...