In re Waldron

13 Johns. 418

• Court: New York Supreme Court
• Decided: August 15, 1816
• Status: Published

Opinion

Thompson,jCh: J.,

now delivered the Opinion of the court. Upon the réMrn to the habeas corpus,, which has been allowed in this case, the jjuestion presented to the court is, whether they are bound to deliver over the- child to her father,, From the affidavits which have been laid before the court, little doubt can be entertained that it will be more for the benefit of the child to remain with her grandparents-than tobe put under the care and custody of her father ; and if this court has hny discretion in süch cáse, it will, no doubt, be discreetly .exercised, by permitting the child to remain: where she is.

The general principle applicable tó cases of this kind, is laid down by Lord Mansfield, in Rex. v. Delaval and others, (3 Bur. 1436,,) that in cases of writs of habeas corpus, directed to private persons, to bring up infants, the court ,is bound, -ex debito justifies, to set the infant .free from an improper restraint-. But they are not bound to deliver the infant, over to any' particular person. '"This must be left to their- discretion according' to the circumstances that shall appear before them. In the present case the child cannot be considered under any improper restraint | she was born at the house of her grandparents, and has aiways lived with,! and been brought up by, them. There is nothing appearing, in any manner, to show that she is kept there against her will and consent. I he case of the Commonwealth v. Addicks and wife, (5 Binney’s Rep. 520.,) is very much in point, and a strong corroboration of the principle, that it is a matter resting in the sound discretion of the court, and not matter of right which the father can claim at the hands of the court. It is to the benefit and welfare of the jnfant to which the attention of the court ought principally to be directed; and this can be much better guarded and .¡protected by the court of chancery, under its peculiar jurisdiction* than by this court, upon habeas corpus. (10 Ves. jun. 59.)

We think, therefore, that it will be a due exercise of the discretion with which the law has invested us, tq deny the present application ; leaving the father to pursue his remedy, if any he has, in the court of chancery, where questions of this kind more properly belong; there being no actual improper restraint of the infant. We think proper, however, to suggest, that the father ought, on all suitable occasions, to be permitted to see the child, taking it for granted that he will not attempt to take her away from the care and custody of he*.' grandparents, except by the aid of some judicial proceeding.

Motion denied.