
    William F. Powers, Respondent, v. Hortense Powers, Appellant.
    Second Department,
    November 13, 1914.
    Husband and wife — divorce — modification of decree so as to permit wife to see children.
    A decree of divorce precluding the wife from seeing her children may be subsequently modified so that she may visit them occasionally, where, since her remarriage, she has led a blameless life.
    Carr and Putnam, JJ., dissented.
    Appeal by the defendant, Hortense Powers, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 20th day of July, 1914, denying the defendant’s motion for a modification of the final decree of divorce herein by granting her leave to see the children of the marriage.
    
      Mayer C. Goldman, for the appellant.
    
      Mortimer W. Byers, for the respondent.
   Stapleton, J.:

The appellant and the respondent were divorced by a judgment entered June 7, 1906. Of the marriage then dissolved there were two children, a boy and a girl. The girl is now aged fifteen and the boy thirteen. Two years after the judgment the appellant remarried. The man whom she married was in no way connected with the dereliction involved in the action for a divorce, and since her remarriage she has led a blameless life. By a provision of the judgment she is precluded from seeing her children, and she applied for its modification so that she may be permitted to see them.

Some affiants vouchsafe the opinion that it would not be for the best interests of the children that this relief be granted, and they attempt to support that opinion by theories which to them are satisfactory, but which appear to have no nobler bases than an apprehension that some fanciful social advantage of the children may be impaired and a belief that punishment for an offense so flagrant should continue unrelaxed. A humane and more agreeable philosophy, however, having its suggestion in the purest human sentiment, persuades us that a child’s welfare is best subserved by fostering the virtue of filial piety even toward a parent who once had erred but who has long since reformed.

The Legislature, in conferring the power upon the court, contemplated that there might be cases, in which the directions for the custody and care of the children of a dissolved marriage should be modified. It appears to us that it should be exercised so as to permit a mother who has transgressed, repented and amended, to see occasionally the children whom she has borne. (See McGown v. McGown, 22 Misc. Rep. 307; affd., 29 App. Div. 628.)

The order should be reversed and the motion granted, so as to permit the appellant to visit the children one afternoon in each third month, with leave to the respondent to apply for further direction if his plans for the education of the children make it desirable.

Jenks, P. J. and Thomas, J., concurred; Carr and Putnam, JJ., dissented.

Order reversed and motion granted, so as to permit the appellant to visit the children one afternoon in each third month, after written notice given by appellant to respondent, with leave to respondent to apply for further direction if his plans for the education of the children make it desirable.  