Lippincott v. Lippincott

• Citation: 128 A. 254
• Decision Date: 23 March 1925
• Docket Number: No. 14.,14.
• Parties: LIPPINCOTT et al. v. LIPPINCOTT et al.
• Court: United States State Supreme Court (New Jersey)

128 A. 254

LIPPINCOTT et al.

v. LIPPINCOTT et al.

No. 14.

Court of Errors and Appeals of New Jersey.

March 23, 1925.

Appeal from Court of Chancery.

Petition by certain parties for custody of and right to visit John F. Lippincott, an infant, opposed by James Lippincott and another. From a decree granting petitioners custody of infant for two months of year (124 A. 532), respondents appeal. Affirmed.

Melosh, Morten & Melosh, of Jersey City, for appellants.

Arthur T. Dear, of Jersey City, for appellees.

MINTURN, J. John F. Lippincott, the infant in the case, was born September 7, 1917. His mother died on February 23, 1919, in Brooklyn, N. Y., where they then resided. Immediately after the mother's death, the infant with his father came to Jersey City to live with the father's parents, where the infant has resided ever since, with the exception of about a year and a half, during which time the child lived with his father and his father's second wife at Ticonderoga, N. Y. Clifford E. Lippincott. the father of the infant, died on May 21, 1923.

On April 30, 1919, almost four years before his death, Clifford, the father, executed a writing in which in case of his death, he delegated to the respondent, Elizabeth Lippincott, "the care, custody, and nature" of the infant.

On December 31, 1923, the appellees, who are the maternal grandparents, presented a petition to the court of chancery, praying for the custody of the infant, and to be charged with his care and maintenance; also that a writ of habeas corpus issue. An order thereafter was made requiring the appellants to show cause why a writ of habeas corpus should not be awarded, and such other order made respecting the infant's custody, control, maintenance, and education as to the court should seem meet.

On March 3, 1924, the appellants filed an answer admitting the facts hereinabove stated, averring that they were more Competent and able financially to take care of the infant; that the father had executed the writing dated April 30, 1919, and that it was the wish of the father that the infant should have nothing in common with the appellees. In their answer the appellants also averred that there was nothing in the petition giving the court of chancery jurisdiction. At the hearing the appellees abandoned the prayer for custody, and the only relief they asked was that the infant be awarded to them for a portion of his time. The court made a decree accordingly, from which this appeal was taken.

No question is presented in the case as to the fitness of either set of grandparents to deal properly with the child. In financial, moral, and social capability, no criticism is presented as to either; the learned Vice Chancellor found none, and apparently the essential inquiry presented is whether, exercising its judgment as parens patriae in behalf of the state, the court of chancery, intent alone upon promoting the best interests of the infant may in the situation confide his custody for two months of the year to his maternal grandparents. Were it not for the obvious importance of the legal inquiry involved, comprehending as it does the extent of the chancery jurisdiction in a cause of this character, it were unnecessary to add anything to the very satisfactory opinion of the learned Vice Chancellor.

The importance of the inquiry thus presented is accentuated by the fact that no case of like character seems to be presented in our reports. Manifestly, the touchstone of our jurisprudence in matters dealing with the custody and control of infants is the welfare and happiness of the infant, and not the filial affections naturally arising from parental or family relationship. Ziegel v. Hutchinson, 91 N. J. Eq. 328, 109 A. 300; State v. Stigall, 22 N. J. Law, 286; Wood v. Wood, 77 N. J. Eq. 593, 77 A. 91; Baird v. Baird, 18 N. J. Eq. 202.

Thus, it has been quite generally held that even the natural right of the father to the custody of his child cannot be treated as an absolute property right, but rather as a trust reposed in the father by the state, as parens patriae for the welfare of the infant. 20 R. C. L. 597, and cases; In re Moore, 11 Irish C. L. 1; Mercein v. People, 25 Wend. (N. Y.) 64, 35 Am. Dec. 653; Purniton v. Jamrock. 195 Mass. 187, 80 N. E. 802, 18 L. R. A. (N. S.) 926.

Both Dr. Paley, in his moral philosophy, and Chancellor Kent emphasize this as the primal consideration in morals, as well as in law. 1 Paley's Moral Philosophy, 221; 2 Kent's Com. 203.

Greece, Egypt, Persia, and the ancient civilizations generally, according to the historian Tytler, considered the child as a charge of the state, which after early infancy took the child into its control and educated him throughout youth, in the manners, customs, traditions, and laws of the state, emphasizing in the curriculum loyalty to the state as the first consideration from the child. "Thus," says Aristotle in his Politics, "It is an axiom that the best laws, though sanctioned by every citizen of the state, will be of no avail unless the young are trained by habit and education in the spirit of the Constitution."

The early Roman law, on the other hand, conceded to the father absolute dominion over the child, including the power of death as a corrective. This arbitrary and unlimited power was afterwards modified by the state in the Interest of the humanities, so that, in the days of the later emperors, a father was banished from the empire for having killed his son. 1 Blackstone, Com. 451.

The English common...