
    The People of the State of New York ex rel. Ellen Therese Elder, Respondent, v. George W. Elder, Appellant.
    
      Husband and wife — what is not a refusal by a wife to lire with, her husband — disposition of the child, how determined — the inclination of the child, how far considered.
    
    Where a woman, at the solicitation of her husband, goes to a western State and there procures a judgment of absolute divorce, the fact that, after the husband learned that the decree of divorce was invalid, he invited her to return to his home, " if she wished," and that she refused to do so, does not establish that she has voluntarily left her husband and without cause refuses to live with him.
    In a proceeding to determine the respective rights of the husband and wife to the custody of their only child, a boy eleven years of age. the chief concern of the court is the welfare of the child.
    Where the mother is a woman of refinement and education, who has time and the money to devote herself to the care of the child, and although the husband occupies a similar station in life, and is not unfitted by his habits, morals or associates to keep the child with him, it appears that he lives in the country, that he is absent in the city every day, and that he has no relatives living in the house to whom the boy can be intrusted during the day, the custody of the child will be awarded to the mother.
    Where the boy avows equal love for each parent and admits that each has shown him tenderness and love, little weight will be attached to his expression of preference as to which parent shall be entitled to his custody.
    Appeal by the defendant, George W. Elder, 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 13th day of April, 1904, awarding the custody of the infant, George W. Elder, Jr., to the relator.
    
      Joseph A. Burr, for the appellant.
    
      A. H. Hummel [David May with him on the brief], for the respondent.
   Per Curiam:

The relator went from this State to South Dakota, and began an action for absolute divorce. While the suit was pending, the husband signed an agreement relative to permanent alimony which provided that the wife might retain the custody and control of their infant son during his minority, or until her remarriage. The relator obtained her decree of divorce, and was awarded therein the custody of the child. She returned to this State. At different times the child visited his father. On one occasion he did not return to the mother, and thereupon she obtained a writ of habeas corpus. Upon the hearing the Special Term, after taking testimony, determined that the foreign divorce was invalid, but awarded the custody of the child to the mother, providing for stated visits to the father. The father appeals.

If the foreign divorce was invalid, and we do not think it essential to pass upon that question, still the relator as an inhabitant of this State, living in a state of- separation, was entitled to the writ, and might be awarded the custody of the child thereunder. (Dom. Rel. Law [Laws of 1896, chap. 272], § 40.) Mother and father are now equal in their rights of guardianship over their child (Id. § 51, as amd. by Laws of 1899, chap. 159), and, therefore, the mother is not confronted, as heretofore, with the common-law preference for the father. It cannot justly be said that the relator voluntarily left her husband, and without cause refuses to live with him. For it is established, in part out of his own mouth, that he had asked her a number of times to quit their home, to seek the divorce of some western State as the remedy for an unhappy marriage. He testifies that he spoke to her on the subject in November, 1901, but “ she refused.” Not only did he repeatedly suggest this step, but he countenanced her going in 1902, and facilitated her suit both by supporting her regularly meantime and by his personal appearance in that action. Even if she was unsuccessful, it was in spite of his suggestion and his active concert. After such banishment, a woman returning to her husband’s house would leave her self-respect behind. The husband says that he asked her to return after he heard that the divorce which he wanted and which she sought was invalid. He told her to come back “ if she wished,” and she replied that she did not wish; that “ she could not understand why I wanted to get rid of her one time and want her back the next.” Under the circumstances it cannot be said that this wife appears wayward or willful or capricious in living in a state of separation, and that she should not be listened to by the court.

The chief concern of the equity court was the welfare of the child. And the award is made with this end in view. (People ex rel. Pruyne v. Walts, 122 N. Y. 241; Matter of Waldron, 13 Johns. 418; Schouler Dom. Rel. [5th ed.] § 248.) We see uo reason to dis- ' turb the disposition of this proceeding. We glean from the record that the mother is a woman of refinement and education, who has the money and the time to devote herself to the care of this young lad of eleven years of age, her only child. Her husband appears to be of a similar station in life, and the record does not show (indeed there was no attempt made to show) that he is unfitted by his habits, morals or associates to keep the lad with him. But it does appear that he lives in the country, that he is absent in the city every day and that he has no relatives living in his house to whom the boy could be intrusted during the day. The welfare of the lad is better assured by placing him with his mother, who is in position to give to him her constant personal care, than with the father, whose personal supervision must necessarily be confined to the night time when the lad should be abed, and who is compelled to leave him to strangers or hirelings throughout the day. We attach little weight to the expression of preference made by the lad under these circumstances, for he avows equal love for each parent, and admits that each has shown him tenderness and love. We are justified in believing that, boylike, he prefers the lesser restraint and finds a promise thereof in the absence of his father and of any one who can stand in loeo parentis in his father’s home. His preference is founded upon no fact that can control. (People ex rel. Pruyne v. Walts, supra; Schouler Dom. Rel. [5th ed.] § 251.)

The order awarding the custody should be affirmed, with costs.

All concurred.

Order affirmed, with ten dollars costs and disbursements.  