
    The State vs. George W. Phillips.
    
      Action for Support of Child—Dismissed.
    
    A divorced wife who refuses to give up the care and custody of her child to her former husband, cannot sustain an action against the latter for the support of said child.
    
      (October 2, 1897.)
    
    Tore, C. J., and Grubb and Pennewiee, J. J., sitting.
    
      R. C. White, Attorney-General, for the State.
    
      Walter H. Hayes for the defendant.
    Court of General Sessions, New Castle County,
    September Term, 1897.
    Action by a divorced wife for support of a fourteen-year-old child. See facts in opinion of Court below.
   Tore, C. J:—

Philips and his wife were divorced by act of the General Assembly of this State, which act is silent as to custody of their only child, a boy fourteen years of age. The wife has retained and insists on his custody. There is no objection to the fitness of either parent to have such custody. The father has tendered himself ready to support the child, if allowed the custody of him; the mother refuses such custody and yet claims from the father separate maintenance. At common law, the duty of maintenance of children by parents, was based on the right to custody, society and services of the child. As this child is not an infant of tender years, and the father is shown to be a fit person to have him in charge, there seems to be no just reason why he should support the child, whose custody, society and services are enjoyed by the mother.

We therefore order the case dismissed.  