ex rel. I.
[NO NUMBER IN ORIGINAL]
SUPREME COURT OF JUDICATURE OF NEW YORK
19 Wend. 16; 1837 N.Y. LEXIS 188
August, 1837, Decided
[**1] HABEAS CORPUS in the case of a minor child, on the question of its custody,
as between the parents. The mother in this case had withdrawn herself from the protection of her husband
and went to reside in the house of her father, and took with her an infant child; to obtain the custody of
which the father sued out a habeas corpus. On the return of the writ numerous affidavits were produced on
both sides, and after hearing counsel, the following opinion was delivered:
Father, the Natural Guardian of Children and Entitled to Their Custody--Court may
Award Custody to Mother-- Statute-- Separation of Father and Mother.
The father is the natural guardian of his infant children, and in the absence of ill usage, grossly immoral
principles or habits, or want of ability to provide for his children, is entitled to their custody, care and
education; and cannot, at common law, be controlled by the courts in the exercise of his paternal rights,
except as above, or for an abuse of the trust confided to him by law.
By statute, this court on the application of the mother, where a husband and wife live in a state of
separation without being divorced, may award the charge and custody of such children to the mother.
It seems, however, that this power will be exercised only in cases of a separation of husband and wife by
judicial decree or by mutual consent; and not where the wife of her own accord without justifiable cause
withdraws herself from the protection of her husband.
It also seems, that a separation without consent will not be approved except where a divorce
a mensa et thoro
would be decreed by a Court of Chancery.
Citations--1 Str., 579; 2 Ld. Raym., 1334; 3 Burr., 1436; 5 East 221; 9 J. B. Moore, 278; 10 Ves., 51; 12
Ves., 492; 2 Russ., 1, 9; Jacob, 245; 4 Cond. Ch., 115, 120; 2 Sim., 35; 2 Cond. Ch., 299; 8 Johns. 328; 2
Kent, Com., 194, 220; 1 Dow, N. S., 152; 2 Fonbl., 232,
; 2 Bro. C.C., 101, Lofft., 74, 78; 1 Dow. P. C.,
81; 2 Cox, 242; 2 R. S., 145-147, secs. 6, 7, art. 3, 4; 148, 149, secs. 1, 2, 3; 150, sec. 1.
Nelson, Ch. J.
By the Court
The father is the natural guardian of his infant children, and
in the absence of good and sufficient reasons shown to the court, such as ill usage, grossly immoral
principles or habits, want of ability, etc., is entitled to their custody, care and education. All the authorities
concur on this point. 1 Str., 579; 2 Ld. Raym,, 1334; 3 Burr., 1436; 5 East 221; 9 J. B. Moore 278; 10 Ves.,
51; 12 Ves. 492; 2 Russ. 1; Jacob, 245, and
to the case; 4 Cond. Ch. 115; 2 Simon 35; 2 Cond. Ch.
299; 8 Johns. 328; 2 Kent, Com., 220, 194; 1 Dow. N. S. 152; 2 Fonbl. 232, [**2]