
    Ex parte STEWART.
    (Supreme Court, Special Term, Erie County.
    October 21, 1912.)
    Habeas Corpus (§ 99*)—Children—Custody and Support—Right oe Father.
    A nonresident father held not entitled, on the facts, to recover the custody of certain of his children from his divorced wife.
    [Ed. Note.—For other cases, see Habeas Corpus, Cent. Dig. § 84’; Dec. Dig. § 99.*]
    ♦For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes •
    Application by Donald Stewart for writ of habeas corpus to obtain the custody of Beryl Stewart and others, infants.
    Dismissed.
    See, also, 137 N. Y. Supp. 202.
    R. E. E. Heard, of Buffalo, for petitioner.
    Walter A. Saxon, of Brooklyn, for respondents.
   PO’OLEY, J.

The relator, Donald Stewart, is a resident of Sheridan, in the state of Wyoming, and the respondent Ida Stewart is his divorced wife, residing in Buffalo, N. Y. The relator commenced an action in Wyoming for divorce against his wife, who had left him, taking these children with her, and for a period of about 18 months, pending the trial, he paid $100 per month for the support of his wife and children. The decree granted the relator a divorce against his wife, and by consent, or at least without opposition, their six minor children were placed in the custody of the mother, and provision was made whereby a trustee was appointed, having charge of certain real estate in Sheridan, the net avails from which were to be sent to the mother for the support of herself and children. These children range from 17 to 6 years of age—three girls, Clare, Beryl, and Mildred, and three boys, Donald, Harold, and Claude.

The respondent has abandoned the care of two of the children. Clare, the oldest girl, is providing for herself, and Claude, the boy of 12 years of age, was placed by her in an institution as a public charge, and so remained until the father was informed of the situation, when he came on here and took the boy out. The oldest boy, Donald, although still living with his mother, is earning sufficient to take care of himself. These three are omitted from the formality of being brought into court, and the writ only concerns the other three. All the children, however, appeared in court, and all but Claude and Mildred were sworn. It would have been more satisfactory had the writ commanded the production of all the children, because they are all equally the wards of the court. If they were all formally before the court, I should rule, on the evidence before me, that Clare, the oldest girl, had and has the right to provide for herself apart from her mother, and that the mother has no further control of her person or her earnings, and that Claude, having been abandoned by the mother, could rightfully be taken care of by the father.

Regarding the other three, those produced pursuant to the writ, they live with their mother, and the two older ones, Beryl, aged 14, and Harold, aged 13, were sworn and expressed their desire to live with the mother. Mildred, aged 6 or 7, was not sworn. The evidence satisfies me that the respondent’s status and surroundings are not what they should be, in view of the fact that these young children are of tender years, with minds susceptible to improper influences. They are living in a rooming house, and have in the past moved from placeTo place many times. These three children, however, appear to be content, well clothed, and well nourished. Corporal punishment seemi to be the rule; but the children who were sworn on behalf of respondent seem to be satisfied that the punishment, when administered, was deserved and not excessive. The conduct of the relator is criticised; but, while the criticism is in some respects just, it is not of a character to justify the court in making an order which might be construed as interfering with the judgment of the court of the state of Wyoming. The record here, however, might, with propriety, be presented to the Wyoming court, with a view to reforming the decree to fit present conditions.

It is unfortunate that this family of children should be broken up and the members of it separated; but separation seems inevitable, because the oldest child, having been barred from her mother’s apartments, is supporting herself, and states that she does not desire to return to Wyoming, but is content to make her own way here, where she is employed. The disabled boy, Claude, is under the protection and care of his father. The youngest child, a girl of 6 or 7, should not at this time be taken from the custody of the mother.

The writ is therefore dismissed.  