CUSTODY OF THE CHILD

Dominion, Volume 28, Issue 92, 12 January 1935, Page 16

CUSTODY OF THE CHILD

Review of English Law The Vanderbilt custody ease is apparently still not settled, since Mrs. Vanderbilt’s lawyer has indicated that there will be an appeal. But as the matter stands at present the custody of Gloria has been awarded to the child’s aunt, with the provision that she shall be with her mother from 10 a.m. on Saturdays till sundown on Sundays, on Christmas Day, and altogether during the month of July.

This is the sort of decision which might have been given in this country, writes “A Barrister” to the “Manchester Guardian.’’ Where there is a dispute as to custody the Court of Chancery long ago adopted the practice of regarding the welfare of the infant deciding factor, and the Guardianship of Infants Act, 1925, made that practice general by laying It down that the welfare of the infant is the first and paramount consideration. and the court is not to take into consideration “whether . . . the claim of the father, or any right at common law possessed by the father, , , , Is superior to that of the mother, or the claim of the mother is superior to that of the father.”

Before 1925, although various enactments had considerably curtailed the old common lajy rights of the father, which vested all rights in him and none in the mother, they still had to be reckoned with whenever a dispute arose. To-day there is equality between the sexes. Decision in 1926. Let us consider the following case which was decided in 1926. The father, wlio was a sailor, placed his motherless child with her maternal aunt because be was himself unable to make a home for the child. He contributed toward tho maintenance of the child and promised that she should reuijiin with the aunt as long as she desired to do so. Some six years later, circumstances having completely changed, the father desired to have the custody of his child, but the aunt refused to give her up. The father thereupon applied for a writ of habeas corpus, and the court had to decide whether the father had forfeited his rights and whether the welfare of the child would be best served by leaving her where she was or by giving custody to the father. The court decided In favour of the father, and tlie aunt appealed. In the meantime, however, she had begun other proceedings in which she sought to have the guardianship and custody of the child. This also went to appeal, and it was finally laid down that although the welfare of the child was the first and paramount consideration, it was not the only consideration, and among other conditions “the wishes of an unimpeachable parent stand first.” The court held that the child would be as well looked after by her father as by her aunt, that he was a man of high character, and that the custody of his child must be given to him. In the same case the Master of tie Rolls laid it down that “it is not merely a question whether the child would be happier in one place than in other, but of her general wellbeing.” Father v. Mother. In yet another important case the dispute was one' between mother and father, and the question, to be decided was whether the child should, be in the father’s custody and under the roof of its paternal grandparents, where it had always lived, or in the mother’s custody and under the roof of its maternal grandparents. The father had instituted divorce proceedings. which, though unsuccessful, were not regarded by the court as unreasonable. The wife, the mother of the child, later obtained an order for restitution of conjugal rights with which her husband did not comply. She thereupon asked for the custody of the child. Lord Merrlvale did not at the time make an order as to custody, but made an order which provided that the child should remain under the roof of its paternal grandparents on the ground that it was best for a child to remain tyliere it had been since birth, but that the mother should have constant access and should have the child with her in her mother’s home periodically during the holidays. “The matters of immediate consideration,” said Lord. Merrlvale, “are the comfort, the health, and the moral and intellectual and spiritual welfare of the child.” One parent may apply to the court for custody of a child while still living witli the other party, but the order ceases to have effect if they continue to reside together for three months after it is made.

The Guardianship of Infants Act gave to a woman similar rights to those possessed by a man with regard to the appointment of a guardian. Father aud mother may to-day by deed or will appoint any person to be guardian on his or her death. If the surviving parent objects or if the guardian considers the surviving parent to be an improper person to have charge of the child he may apply to the court, and the court will deeljle whether the parent or the guardian is to have sole charge or whether they are to act jointly. If there is a dispute Between joint "guardians on any matter affecting the welfare of the child the eourt will decide between them in the samo way as it would if the dispute was between father and mother.