
    Harris P. Osterhoudt, Plaintiff, v. Ella H. Osterhoudt, Defendant.
    (Supreme Court, New York Special Term,
    July, 1899.)
    Divorce — Guilty wife awarded custody of the children at their request.
    Where a husband’s charge of adultery rests only on the fact, that his wife is living with another man whom she attempted to marry upon the basis of a foreign divorce which the courts of the State of New York subsequently refused to recognize as legal, and he concedes that she is otherwise a safe custodian for her daughters, aged eleven and sixteen years respectively, the expressed wishes of the latter will be respected by the court and their custody will be awarded- to the mother.
    Action for a divorce.
    William M. Mullen and John L. Brower, for plaintiff.
    Eldon Bisbee, for defendant.
   Russell, J.

The acts of the defendant in marrying another man while her husband was alive, and living with that other were unjustifiable, and give to the plaintiff the right to a divorce. Bo jurisdiction was ever gained in the District Court of Borth Dakota to dissolve the marriage tie between the plaintiff and the defendant, residents of the state of Bew York. Were no other considerations, therefore, involved the plaintiff would not only be entitled to be freed by judgment of this court from the defendant, but would also have the control and custody of the two minor children, both daughters, aged respectively sixteen and eleven.

Apart, however, from the consideration of the rights of the father, and the forfeiture of claim to her children by the defendant on account of her own acts, stands the more important matter to be decided, so far as the custody of these children is concerned, as to what is best for their future. The wishes of the parents are of minor importance. Cook v. Cook, 1 Barb. Ch. 639; Waring v. Waring, 100 N. Y. 572; McGown v. McGrown, 22 Misc. Rep. 307; affirmed, 29 App. Div. 628.

These two young girls appeared as witnesses upon the trial, and expressed a strong preference for living with their mother. It was a very natural wish under the circumstances. The plaintiff had suffered his wife to reside in Utica with the two daughters, he paying occasional visits, and more infrequently receiving visits from them. The mother, being possessed of property, largely maintained herself and children, and is evidently able to continue to do so, while the circumstances of the father are more straitened, he working for a moderate salary in the city of Bew York. Under these conditions the natural tenderness of children for their father would not have the full opportunity for expansion and development which would have been the case had the family resided together.

These daughters are at an age when the tender guidance of a mother is of incalculable advantage, and should only be lost to them by her death or misconduct. No such misconduct appears on her part as would justify the court in banishing them from her presence. The plaintiff concedes upon the witness stand that he knows of no reason why the mother is not a perfectly safe custodian for the children, except the one charge of her subsequent marriage and continued living with a man who is not her husband, although she regards him as such. The children evidently respect the mother and this man who occupies the relation of a husband to that mother.

As there is no perceptible harm in their living with the defendant, and so the system of nurture and education, which has so far produced beneficial results, may be safely continued, and as the plaintiff by his own sufferance has permitted the mother in the years of infancy and childhood to guide and shape the characters of these children, I think their best welfare lies in remaining with the mother for the greater period of time, subject to the right of the father to their frequent companionship away from the home of the mother, which is now alien to him, so that he may promote the mutual feelings of respect and love, which should exist between children and their father, and enable them in after years to choose for themselves with which parent they will identify their existences, if choice becomes imperative.

Let counsel agree upon the form of a judgment to carry out the principle indicated herein, if possible to do so, and if not submit their views, with a proposed decision and judgment.

Ordered accordingly.  