In re Flemings

2 N.J. Misc. 854, 1924 N.J. Ch. LEXIS 131

• Court: New Jersey Court of Chancery
• Decided: September 10, 1924
• Status: Published

Opinion

Ingersoll, V. C.

I agree with Mr. Bloom that any order at the present time should be in the nature of a temporary arrangement. I .am not as well impressed with the conduct of the petitioner as I might be. It is, perhaps, impossible to describe or state why that impression exists. I am impressed with the fact that I must believe the statements of the two officers of the .court who testified as to statements made by this woman in the court room during the recess of the hearings yesterday. I can’t believe that Mr. Sacks and Mr. Jacob.y, both attomeys-at-law, would say to the court that this woman used such vile remarks concerning her husband unless it was true. If it were true, and she admitted it, that it was done in the heat of her feeling, under such circumstances I would feel that it had done her case less harm than it would now, in the face of her denial of making such statements when I must believe the statement of those attorneys.

I,mention that particularly because that is hound to have its effect upon my mind. The court cannot at this moment give the possession of the child to the wife unless the court does one or two other things, and that is arrange for the support of the child, and to some extent of the mother hv the order in which possession is given. I do not.feel that the court is now in position to do that, and, right in that line, it was evidently the expectation and the intention of the mother to immediately remove this child from this jurisdiction to Pennsylvania. She right frankly states so, and T do not feel that she can change her desires and her willingness so promptly now, and have arrangements made by which she can take care of this child.

The court will make a temporary order only that the child may remain in the custody of the father, but that access and temporary possession of the. child may be had by the mother, and I think counsel ought to be able to agree upon some times and the number of times that that can he arranged for. If counsel cannot agree on that, the court will make some arbitrary order.

This is only a temporary order during the summer months, and the petitioner is at liberty to make application later, or a renewal of the present application or such other application as counsel may advise.

Without doubt, if circumstances were anywheres nearly equal, the custody of the child, less than five years old, especially a child who needs medical attention, should be placed in the custody of the mother, but, I find the circumstances such in this case that the court is hound to make this temporary order of a refusal of the habeas corpus for physical possession of the child by the mother, but that that refusal must be accompanied by an order giving her the opportunity at every reasonable and frequent times to have the child. Counsel can agree upon some formal order, can’t you?

Mr. Babcock — May I state to your honor that Mr. Flemings is perfectly willing that she shall have access to the child at all reasonable times, but I think a suggestion would be very wholesome to the lady that upon seeing the child she must not create any disturbance. That is the only thing we object to, is the disturbance which she has made, not her right to see the child at all times.

The Court — There is also this comment that the court must make, no matter which one it applies to, there mustn’t be any action on the part of either parent endeavoring to estrange the child’s affection from the other parent. If I should find that the husband had in any way taken any steps to estrange this child from its mother, I would immediately take the possession of the child from him, irregardless whether I would have to send it to some institution, perhaps. The unhappy and unfortunate differences between the man and wife must not extend down to the child. Prepare such on order, gentlemen, and I will sign it, understanding that it is temporary.