Warnecke v. Lane
| Decision Date | 20 January 1910 |
| Citation | 75 A. 233 |
| Parties | WARNECKE v. LANE. |
| Court | New Jersey Court of Chancery |
Habeas corpus by Henry J. Warnecke against William B. Lane to recover possession of certain minor children. Relief denied.
Gaede & Gaede, for petitioner.
James J. Quill, for defendant.
The controversy is over the custody of two female infant children about five and eight years of age, respectively. The children are in the custody of their grandfather, William B. Lane, the father of their deceased mother. The writ of habeas corpus is issued at the instance of Henry J. Warnecke, the father of these children, for the purpose of having them transferred from the home of their grandparents to his own home.
The statutes regulating and enlarging the jurisdiction of the Court of Chancery to control the custody of minor children, where the controversy is between the parents of the children, do not apply to this case. The Court of Chancery gets jurisdiction of the case by having the infants brought before the court by the writ of habeas corpus. The court, however, is not confined to the liberation of the children from any possible restraint and the protection of them from improper interference after the proceedings in court have been concluded. The return to the writ and the traverse which the petitioner was allowed to make present to the court the whole matter of the custody of these infants, and the court, therefore, will exercise its well-settled jurisdiction to determine, award, apportion, and control their custody precisely as if the controversy were between parents. Richards v. Collins, 45 N.J.Eq. 283,17 Atl. 831, 14 Am. St. Rep. 726 (Errors and Appeals, 1889); Baird v. Baird, 21 N.J.Eq. 384 (Errors and Appeals, 1869).
I am not aware that any natural original right of custody in a grandparent which limits the parental right of the father has ever been recognized by our law. Controversies over the custody of a child between its father and the parent or parents of its deceased mother are frequently brought into this court. Sometimes the father's relations with the grandparents have become embittered. He has married again, and, not regarding the manifest interests of his child, he cuts the child off from all intercourse with its grandparents. A limited right of custody, at least to the extent of reasonable visitation, it seems to me, might well be accorded to a grandparent in many of the cases of this class. The authorities, however, so far as I have examined them, seem to place the grandparent in the position practically of a stranger, where the father stands before the court with his common-law right to the custody of his child unimpaired. No original right of custody or visitation in this grandparent will be recognized in this case, if, indeed, such right exists in any form in any case. If the father of these children has not waived or forfeited in any way his parental right, he is entitled to the custody of his children, although it may be that it would be greatly to their advantage if they could retain their home with their grandparents.
My conclusion from the testimony is that the father, by his conduct from the birth of the oldest child until the death of the mother, in September, 1909, abandoned and waived in favor of the grandparents the custody of these children, and that now the court has full power to make orders regulating their custody, based substantially upon what may appear to the court from time to time to be to their advantage. Richards v. Collins, supra. The story of his married life, which this father tells without the slightest hesitation, indicates that he is deficient in moral sense. Shortly before the birth of the older child, he was induced to marry its mother, plainly in reparation for the wrong that he had done to her. He testifies that he told her that he "would not marry her unless she understood" that "he was never to live with her," and he adds: "She took up the proposition, and said that I need never live with her as long as I supported the child." He made it a practice to visit his wife from time to time, during one considerable period at least, once a week. He states that his wife often asked him to come and live with her, and that he refused. The couple were both minors when the marriage took place. The husband is now about 29 years of age. During the period of about nine years while he maintained these singular marital...
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Lavigne v. Family & Children's Soc. of Elizabeth
...might be unjust that, solely because of the parent's caprice, legal sanction should be refused to the new conditions." In Warnecke v. Lane, 75 A. 233 (N.J.Ch.1910), where two children had been placed with their grandparents since birth, and at the time of their father's application for rest......
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In Re Petagno.
...285, 293, 34 A. 1054, et seq.; Rossell v. Rossell, 64 N.J.Eq. 21, 53 A. 821; Hasselman v. Haas, 71 N.J.Eq. 689, 64 A. 165; Warnecke v. Lane, N.J.Ch., 75 A. 233 (note reported in State Reports); Palmer v. Palmer, 84 N.J.Eq. 550, 95 A. 241; In re Malley, 1942, 131 N.J.Eq. 404, 25 A.2d 630; Id......
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Brown v. Parsons, 202.
...we think he has waived any right he had to the custody of the child as against its maternal grandmother or its mother. See Warnecke v. Lane, N.J.Ch., 75 A. 233 (not officially reported). The second point raised in the brief of counsel for the petitioner is in reference to the best interests......
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Ex Parte Alsdorf.
...it might well be that it would be greatly to their advantage if they could remain at the home of their maternal grandfather. Warnecke v. Lane, N.J.Ch., 75 A. 233; Ex parte Kirschner, N.J.Ch., 111 A. 737; Starr v. Gorman, 136 N.J.Eq. 105, 40 A.2d 564; Ziezel v. Hutchinson, 91 N.J.Eq. 325, 10......