Opinion
Argued June 25, 1890
Decided October 7, 1890
Watson M. Rogers for appellant.
Levi H. Brown for respondent.
This case is very similar in its facts to In re Welch ( 74 N.Y. 299). There, as here, the contest was between the testamentary guardian appointed by the will of the father and those to whose custody the mother had committed the child. There, as here, the Special Term dismissed the writ, without prejudice to further proceedings, for reasons affecting the health and welfare of the child. This court dismissed the appeal, holding that such reasons justified the withholding the custody of the child from its legal guardian, and that the matter was one so purely within the discretion of the Special Term that its conclusions would not be reviewed.
We are of the opinion that the same disposition must be made of this appeal. ( People ex rel. Allen v. Allen, 105 N.Y. 628.)
The learned counsel for the relator claims that it was an abuse of discretion to withhold the custody of the child from its legal guardian. The rights of the guardian are no greater than those of the father, and the cases are numerous where the custody of an infant has been withheld from the father upon considerations relating to the child's welfare. ( In re M'Dowle, 8 Johns. 328; People ex rel. Whele v. Weissenbach, 60 N.Y. 385.)
The common-law writ of habeas corpus was a writ in behalf of liberty, and its purpose was to deliver a prisoner from unjust imprisonment and illegal and improper restraint. It was not a proceeding calculated to try the rights of parents and guardians to the custody of infant children. It was of frequent use, however, when children were detained from their parents or guardians on the ground that absence from legal custody was equivalent to illegal restraint and imprisonment. In the case of children of the age of discretion the object of the writ was usually accomplished by allowing the party restrained the exercise of his volition, but in the case of an infant of an age to be incapable of determining what was best for itself the court or officer made the determination for it, and, in so doing, the child's welfare was the chief end in view. ( Rex v. Delaval, 3 Burr, 1435; In re Waldron, 13 Johns. 418; People ex rel. Barry v. Mercein, 8 Paige, 47; 25 Wend. 73; People ex rel. Wilcox v. Wilcox, 22 Barb. 178; Wilcox v. Wilcox, 14 N.Y. 575; People ex rel. Whele v. Weissenbach, 60 id. 385; Hurd on Habeas Corpus, chap. 9.) The purpose of the writ as now regulated by the Code is the same. (Code Civ. Pro. §§ 2015-2031.)
The court is bound to respect the legal rights of the parent or guardian, and their rights cannot be overthrown by the mere wishes of the child. But the jurisdiction to be exercised by the court or officer is equitable in its character, and the welfare of the child is the chief object to be attained, and must be the guide for the judgment of the court.
It is entirely competent, therefore, for the court while recognizing the legal rights of the guardian to make a temporary disposition of the child, and deliver it to other control or custody when such disposition is for the best interests of the child, and this is a matter which rests very largely in the discretion of the court or officer who issues the writ.
Such was the only order made in this case. It provided that it should be without prejudice to a renewal of the relator's application, and no final adjudication against the legal right of the relator has been made.
We are of the opinion, therefore, that there is nothing before us for review.
The appeal should be dismissed, with costs.
All concur, except FOLLETT, Ch. J. not sitting.
Appeal dismissed.