Chamberlin v. Chamberlin — 194 A.D. 470

Majority

p. 470

Amelia B. Chamberlin, Appellant, v. Arthur B. Chamberlin, Respondent.

First Department,

December 10, 1920.

Headnote

Husband and wife — separation — motion for restitution of children on reversal of decree in separation — habeas corpus proper remedy.

The plaintiff in a separation action in which the decree awarded the children to the defendant is not entitled to have the children restored to her on a motion for restitution after a reversal of the decree.

p. 471

In a case of this character the principal consideration is the interest and welfare of the children, and it seems that the proper remedy is by writ of habeas corpus.

Motion for restitution to the plaintiff of the custody of the children of the parties, made upon settlement of the order. of the Appellate Division reversing a judgment of the Supreme Court in favor of the defendant. (See Chamberlin v. Chamberlin, 193 App. Div. 784 .)

Boyal E. T. Biggs, of counsel for the plaintiff, for the motion.

Charles Weishaupt, of counsel for the defendant, opposed.

This is a motion for restitution to the plaintiff of the custody of the children of the parties, on the reversal of a decree made in an action for a judicial separation, in which the custody of the children was awarded to the defendant. If the rights of the litigants alone were to be considered, it would seem, the custody of the children having been given to the plaintiff in the separation agreement, that on the reversal of the decree depriving her of that custody, the children should be restored to her. In a case of this character the principal consideration is the interest and welfare of the children, which we cannot determine on this motion. The proper remedy is by writ of habeas corpus, in which proceeding the court will have the children before it and can make such disposition of the matter as will best serve their interest irrespective of the agreement or desires of the parties and unembarrassed by an order of this court.

Present — Clarke, P. J., Dowling, Smith, Page and Greenbaum, JJ.

Motion denied. Order of reversal settled and filed.