Starr v. Gorman.

• Decision Date: 04 January 1945
• Docket Number: No. 205.,205.
• Citation: 40 A.2d 564
• Parties: STARR et al. v. GORMAN.
• Court: New Jersey Supreme Court

40 A.2d 564

STARR et al. v. GORMAN.

No. 205.

Court of Errors and Appeals of New Jersey.

Jan. 4, 1945.

Appeal from Court of Chancery.

Proceeding on application of Abraham Starr and another, the maternal grandparents of Barbara Gorman, against Jack Gorman, the father of such child, for legal custody of the child. From a decree denying the application, petitioners appeal.

Affirmed.

Emanuel Gersten, of Hillside (Louis B. Zavin, of Hillside, of counsel), for appellant.

Samuel Levin, of Newark, for respondent.

On appeal from a decree of the Court of Chancery advised by Grosman, A. M., who filed the following opinion:

‘This is an application by the maternal grandparents for the legal custody of their granddaughter, Barbara Gorman, approximately six years and seven months of age. The respondent is the infant's father. The child's mother is dead.

‘The underlying facts are these:

‘The defendant married Belle Starr, the daughter of the petitioners, apparently against the united opposition of her family. On February 10, 1938, she gave birth to Barbara Gorman, the child whose custody is now being sought, and passed away on February 15, 1938. The child remained at the hospital for a short time and then taken to the home of her aunt, Mrs. Ceil Levy. Some four months later, she was removed to the home of her maternal grandparents, the petitioners herein, with whom she continued to make her home until the 8th day of November, 1942, when the defendant took the child and refused to return her. The petitioners, thereupon, instituted the present proceedings.

‘By order of this court made on the 9th of November, 1942, the child was returned to the custody of the petitioners and the defendant allowed visitation. After considering the matter, I concluded that any change in the child's custody would have to be gradual so as not to unduly upset her. Accordingly, on February 17th, 1943, I directed that for a period of six months the child was to remain with her maternal grandparents and spend some time with her father and his present wife. An order to this effect was entered on the 4th of March, 1943. It was my hope that the parties, out of consideration for the child, would reach some amicable settlement of their difficulties. The grandmother, unwisely, as I believe, encouraged by her daughters, has taken the position that the child is not to be given in to the care of a stepmother; and she stubbornly insists that nothing short of the absolute and unconditional custody of the infant, will satisfy her. The defendant father remarried on August 29, 1942. His present wife is a lady of unimpeachable character who is willing and anxious to look after her husband's child. He is employed and earns $50.00 to $65.00 per week. They occupy a nice three room apartment and expect to rent larger quarters as soon as such can be found.

‘The grandparents' application for custody is based upon their contention that the father abandoned his child and that it would be for the best interests of...