
    The People ex rel. Pleasant B. Humex, Relator, v. George Phelps and Annie Phelps, Respondents.
    (Supreme Court, Westchester Special Term,
    April, 1908.)
    Parent and child — Custody and control of child — Eight of parent as against third person.
    The question whether a child shall be restored to the custody of its parent who has once voluntarily parted with it, is a question in the determination of which the paramount consideration should he the welfare of the child.
    Where a mother placed her daughter when about nine months old in the custody of a man and his wife who kept house and cared for and educated the child until she was nearly eleven years of age and during that period sustained toward her the relations of parents to a child, while the child's mother seldom visited her, nor contributed materially toward her support, nor demanded, her custody; and where the child, when brought before the court upon a writ of habeas corpus sued out by her mother, declared her affection for and attachment to those who had cared for her and deliberately and positively and with much feeling, insisted upon being allowed to continue living with them, the court will not take the child from their custody and commit her to the care of her mother for the pui-pose of enabling the mother to take her to a distant State, although there is no evidence that the latter is unfit to have the custody of her child.
    Babeas corpus proceedings,
    
      N. P. Bushnell, for relator.
    James Dempsey, for respondents.
   Tompkins, J.

The question that is paramount to all other ■considerations in the proceeding, is the welfare of the child whose custody is sought by the relator.

The facts, briefly stated, are as follows: When the child was • about nine months old she was placed by the mother, the relator, who was living separate and apart from her husband, in the custody of Mr. and Mrs. Phelps, who were childless and living in the city of Chicago, where the mother and child also resided. Mr. and Mrs. Phelps continued to live in Chicago for about four years, during all of which time they had the exclusive custody and care of the child, and during which time the mother called to see the child only three times for a few minutes on each occasion, and contributed toward her support and maintenance the sum of about fifty dollars. About six years ago, Mr. Phelps moved with his wife and the child to Peekskill, 1ST. Y., where the concern for which he had worked for several years in Chicago set up a business. Their removal was solely for the purpose of enabling Mr. Phelps to take charge of his old employer’s new vinegar making business in Peekskill. Since then, they have lived in Peekskill, keeping house and caring for and educating the child, who is now nearly eleven years of age. During their six years’ residence in Peekskill, the. child’s mother has never visited her, until about two or three weeks ago, when she went there to demand her custody and take her to San Francisco, where she now resides; and, during these six years, she has contributed nothing toward the child’s sup-, port. Mr. and Mrs. Phelps have clothed, fed, educated and cared for the child in all respects as their own child; and, from appearances, as well as from the testimony taken before me, I conclude that she has had most excellent care and careful training. She has never known any other parent, having always called Mr. and Mrs. Phelps, papa ” and “ mamma,” and never knew that she had any other mother until very recently. The reason, given by Mrs. Phelps for concealing from the child the truth in reference to the matter, seems to me to have justified her in so doing. The mother’s reason for so long neglecting her child and her failure to sooner make a claim for her custody and an offer to support her are not satisfactorily explained.

Of course, the mother has the legal right to control her minor child, providing such control shall not interfere with the child’s present and future happiness and welfare; and the court will not give the custody of a child even to a parent, if the change is likely to he to the disadvantage of the child. In this case, the child has never known her own mother, while she has grown to know Mr. and Mrs. Phelps as her parents, and loves them as such; and now, at the age of nearly eleven years, she declares her affection for and attachment to them and, deliberately and positively and with much feeling, insists upon being allowed to continue living with them. .She is remarkably intelligent for her age; and it seems to me that it would be cruel to force her, against her will, to go with her mother, a comparative stranger to her, to the Pacific Coast, and away from the only home she has ever known and the people who have stood in the relation of parents to her ever since her infancy.

If the child was a few years younger, it might well be claimed that the court should place her in the custody of her mother, in order that her affections might be restored to their natural channel and that she might learn to love her mother most; but, at the present age of the child and with her intelligence and strong love for the respondents and the feeling that was manifested at the hearing, I am forced to the conclusion, regrettable as it is, that the child would not be happy and contented with her mother in the west, and that it would be greatly to her disadvantage to be taken from her present home. All legal rights and claims must give way to the health, happiness, welfare and best interests of the child; and I am constrained to find that the breaking of the tender and loving attachment which has most naturally grown up between the respondents and the child, during the past ten years, would result in irreparable injury to the child’s present and future welfare.

The claim that the child’s mother is morally unfit to have the custody of her child is not sustained by the evidence. Were the circumstances respecting the life of the child not as they are; or, if she were a younger child, whose affections might be directed and formed by new associations and the love, attention and devotion of the mother, I should grant the mother’s application for the custody of the child, because I am satisfied that she is a fit and proper person for the care of her child; hut, because, in my judgment, the welfare of the child would not be served by such a change and that her best welfare will be promoted by a continuation of the relations now existing, I am led to deny the application.

Writ dismissed and child remanded to the custody of the respondents. Mo costs.

Writ dismissed and child remanded to1 custody of respondents. Mo costs.  