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Surrogate's Court.

[Feb.

hearing by reason of the fact that this child was in no way adopted from an "orphan asylum or charitable institution," as defined by chapter 272 of the Laws of 1896, under which these proceedings arise, and from which it is urged that the legislature intended to give the surrogate jurisdiction in proceedings of this character only when the child had been actually adopted from a charitable institution or orphan asylum, and not by the act of the superintendent of the poor himself, on the one hand, and the claim of the petitioner, on the other, that this court has jurisdiction; that the legislature, in making the domestic relations law, clearly intended to codify existing prior laws which should apply to all cases provided by the statutes of 1884, giving the county judge co-ordinate jurisdiction with the surrogate's court over proceedings relating to the adoption of infants and the abrogation of adoption; that the statute is remedial, and should be liberally construed, and be understood in the sense which best harmonizes with the subject of the enactment and the object which the legislature had in view, as well as with reference to the object to be accomplished by the act; that the superintendent of the poor is, within the contemplation of law, a charitable institution, at least, to the extent which should give this court jurisdiction; that no violence is done to the intent of the statute by characterizing such officer as a "corporation" or an "institution;" that every incident attached to the office affords such a conclusion. Without passing on the question, I am impressed with the fact that, unless the officers designated in the statute can act in this proceeding, there can be no remedy or relief. The proceeding to abrogate adoption can only be effected by the proceeding instituted, and only by the court and officers provided by law, to wit, the county judge or by the surrogate's court. While it is true that the supreme court has plenary power over the custody and control of infants, even to the extent of taking such infants from the custody and control of natural parents, yet it can no more abrogate an adoption than it can decrec that the laws of inheritance should be set aside. It follows, therefore, that the proceedings of the supreme court upon the

Matter of Trimm.

1900]

writs of habeas corpus were only directed to the question of who was the proper custodian of the infant, and had no bearing on the question directly under discussion. There is no doubt but that court may exercise the very widest range of authority over the person and property of an infant, yet it seems to have no power under the domestic relations law to abrogate an adoption, or, in the words of the former statute, "cancel the agreement of adoption." Such power is placed in the county judge and in the surrogate's court, and, until the adoption is abrogated by one of these two tribunals, the contract of adoption, carrying with it parental and filial relations, with property rights appertaining to those relations, remains in force, wholly undisturbable by anything any other court can do. It is interesting to inquire what effect the former decree made by this court has upon this proceeding. It is somewhat anomalous. When the decree of the surrogate's court was made, the child, by operation of law, was placed in its former status, which, in the words of the statute, “should be the same as if no proceeding had been had for the adoption thereon." The decree, being unreversed, and not even appealed from, stands, it would seem, as an adjudication between those parties, not only as to its final effect, but also as to all material questions involved in its validity. My views as to the unfitness of the foster parents, and of their cruel and inhuman conduct, and as to their being improper persons to have the custody and control of this child, are expressed in the decree of January, 1898, and have never changed. These conditions were shown to my satisfaction to exist at that time, and, from the precocious untruthfulness of the infant herself upon this proceeding, as well as her unnatural demeanor, incline me to the belief that their influence still continues. The further fact that these foster parents felt obliged to send this infant out of their own power, control, and restraint, to practically restricting influences, confirms my original belief upon this question.

Proceedings have been brought for abrogation, adoption, and to set aside original surrenders in this matter, and have been constantly before the courts for upwards of three years. The

Surrogate's Court.

result of concurrent jurisdiction has been exceedingly harmful, at least to the welfare of this infant. The proceedings, in one form or another, in different courts, for the past years, have made life almost a burden to the foster parents as well as this infant. The abrogation of the decree of the surrogate's court being almost immediately followed by the readoption to the same foster parents in the county court, again followed by another proceeding in this court for abrogation, leaves neither tribunal with any assurance that a judgment rendered after careful deliberation will ever be final.

[Feb.

I have determined to dispose of the question of jurisdiction upon a view presented by neither party to this proceeding. This infant was adopted in pursuance of the provisions of chapter 272 of the Laws of 1896, and, though the jurisdiction of the county judge and surrogate's court is concurrent under this act, I am nevertheless of opinion that the power to abrogate an order of adoption does not rest in a court other than that which granted it; nor do I believe an order of adoption can be granted after another court of concurrent jurisdiction has judicially determined, between the same parties, that they are unfit to retain the privileges and rights following such a contract by abrogating the same. While the law always requires the sanction of a court, to create or destroy such status, it never could have been intended that the county judge should sit as a court of appeals on the judgment of the surrogate, or that the surrogate's court should sit in that capacity on the judgment of the county judge. Any other view would result in the possibility of an endless chain of adoption and abrogation between the same parties; for after the abrogation of an order of adoption granted by one court as a conclusion of deliberate judgment, founded upon substantial evidence to support it, an order of adoption is made by a court of concurrent jurisdiction, as in this case, to the identical parties from whom such contract and the rights and privileges hereunder were canceled, the abrogation is immediately nullified in fact, and the original status restored by the judgment of another court to whom concurrent jurisdiction is given by the

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statute. Surely there is no express power in the statute for such review. The evil of such a construction is apparent in this case, and seemingly gives to a court, at least in effect, powers that never could have been intended by the legislature, and which belong to appellate courts. The simple order of adoption made by one court after abrogation by another between the same parties completely nullifies and makes void the judgment of one court by another of co-ordinate jurisdiction, giving it, in effect, powers exercised only by appellate tribunals, and so completely destroying and doing violence to the intent of the statute in question. The petitioners must therefore seek their relief in that court from which the order of adoption issued.

I can only express my regret that the question of jurisdiction was not argued on the first hearing. It was assumed by all parties. Upon the merits of the controversy there is nothing that changes my views as originally expressed in the decree rendered in January, 1898, after carefully weighing the testimony of 30 witnesses. I regret again to add uncertainty to what seems to be a determined effort to establish right as differently viewed by the parties to this proceeding, and would gladly direct such judgment as would bring the proceedings to a final determination for the advantage of all concerned, though I believe that to be quite impossible until every legal remedy is exhausted. The questions raised not only are important, but novel and intricate, and can only be settled definitely and finally by a court of high

est resort.

Petition dismissed, without costs.

Appellate Division.

OSTERHOUDT v. OSTERHOUDT.

[48 App. Div. 74: 96 St. Rep. 529; 62 Supp. 529.]

(Supreme Court, Appellate Division, First Department. 1900.)

a. The statute.

b. In general-Jurisdiction.

c. Agreements of parents.

DIVORCE-ADULTERY-CUSTODY OF CHILDREN.

Where plaintiff obtained a divorce on the ground of the wife's adultery, which charge was based on the fact that she had obtained a decree of divorce in a foreign jurisdiction, and had remarried, a decree granting her the custody of the children-two daughters, aged 11 and 7 yearswill not be disturbed when it appears that the wife is a proper person for their custody, no other misconduct than her remarriage being shown, and that she has a comfortable home for them, and has long had the care and expense of their living and education, and that they are NOTE. CUSTODY OF CHILDREN AFTER DIVORCE OR SEPARATION.

d. Modification.

e. Remedies to obtain custody.

[Feb.

f. Death of custodian.

g. Appeal-Discretion,

February 9,

a. The statute.

§ 1771 of the Code of Civil Procedure provides that the custody of any children of the marriage may be controlled by the court pending a matrimonial action, and awarded by the final judgment as between the parties, and provision made for their care, maintenance and education.

b. In general-Jurisdiction.

The real question is not what are the legal rights of the father or mother to the custody of the child, or whether the right of one is superior to that of the other, but what are the rights of the child, and what is required in respect to its custody by its own best interests; and the court will go behind

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