Ex parte Malley

• Decision Date: 21 April 1942
• Docket Number: 134/485.
• Citation: 25 A.2d 630,131 N.J.Eq. 404
• Parties: Ex parte MALLEY.
• Court: New Jersey Court of Chancery

25 A.2d 630

131 N.J.Eq. 404

Ex parte MALLEY.

134/485.

Court of Chancery of New Jersey.

April 21, 1942.

Syllabus by the Court.

The mother of a child, even though illegitimate, is entitled to its custody unless she has forfeited her right either by abandonment or by reason of her unfitness.

Proceeding in the matter of the application of Anna Belle Malley for a writ of habeas corpus for infant child, Mary Malley, also known as Marie Annabel McLaughlin, to secure custody of the child.

Custody awarded to petitioner.

Vanderbach & Vanderbach, of Guttenberg, for respondents.

William B. Morley, of Hackensack, for petitioner.

LEWIS, Vice Chancellor.

In this habeas corpus proceeding petitioner seeks the custody of her illegitimate child, a girl born in April, 1939. The child has been in the possession of respondents ever since about ten days after its birth. As against third persons, the mother, even if the child be illegitimate, has a right to its custody unless she has forfeited that right by surrender or abandonment or unless she is an unfit person to exercise control. In the instant proceeding the putative father is not concerned since he has neither appeared nor made any claim. In Hesselman v. Haas, 71 N.J.Eq., 689, at page 694, 64 A. 165, at page 167, the court lays down the rule as follows: "Although there is some discussion as to whether, as between the putative father and the mother of an illegitimate child, the latter has a superior right to its custody (Schouler's Dom.Rel. (5th Ed.) § 278 et seq.), it is entirely settled that, as against any other than the putative father, the mother of such a child has the natural right to its custody. Reg. v. Nash, 10 Q.B.D. p. 454; 13 Eng.Rul. Cas. p. 26, in the note to which the English and American cases are given. Friesner v. Symonds, [1890], 46 N.J.Eq. 521, 527 , 20 A. 257, 259 (Van Fleet, V. C.)."

It is the contention of the respondents that not only did petitioner abandon her child but that she is an unfit person to have its custody. They assert that the facts bring this proceeding within the rule laid down in Richards v. Collins, 45 N.J.Eq. 283, 17 A. 831, 14 Am.St.Rep. 726 that "The strict legal right of parents to the custody of their children will not prevail, if it imperils the personal safety, morals, health, or happiness of the children, and the court will scrutinize the character, condition, habits, and other surroundings of the claimants, as well as consider the preferences of the children if competent, in determining what will best subserve their welfare."

However, the respondents in my opinion have not established sufficient facts to bring this case within the exception. As to the alleged abandonment, the facts and circumstances lead to the conclusion that petitioner never intended giving up her child but in fact intended to reclaim it as soon as she could properly provide for it. The circumstances of the birth were such that she evidently was not only in a desperate financial situation but also mentally distraught. She was employed as a nurse in a hospital in Brooklyn, but she had to leave on account of her condition. Her parents who were at least partially dependent upon her for support were in...