Clark v. Clark

75 N.E.2d 439, 321 Mass. 682, 1947 Mass. LEXIS 707

• Court: Massachusetts Supreme Judicial Court
• Decided: October 31, 1947
• Status: Published

Opinion

Lummus, J.

In this libel for divorce brought by Muriel H. Clark against her husband Hugh T. Clark, the Probate Court entered a decree on February 26, 1947, granting the libellant a decree nisi on the ground of cruel and abusive treatment, but providing that “said libelee [shall] have the care and custody of John Hugh Clark, their minor child.” Muriel H. Clark appealed. The only question argued concerns the right to care and custody of the child, who was born'on May 6, 1944. The evidence is not reported, but the judge reported the material facts.

The child lives with his father and a married sister of the father. His care and environment are admittedly good, and the sister takes excellent care of him. The mother sometimes becomes under the influence of liquor, and has been indiscreet with men, although there is no finding of any criminal conduct on her part. The judge found that “the child’s welfare will be better served if he stays with the father.”

In Richards v. Forrest, 278 Mass. 547, 553, Rugg, C.J., said, “It has been said that the first and paramount duty of courts is to consult the welfare of the child,” and that that rule applies in “proceedings between disagreeing parents respecting the custody of the child.” That rule has never been challenged since, and still prevails. In Erickson v. Raspperry, 320 Mass. 333, 335, it is spoken of as the “most fundamental” principle. Applying that principle to the facts found by the judge, we find no error in the decree entered by him.

Decree affirmed.