People v. Landt

Headnote

The mother child is enti-tied to its custody; botifit -appear that ^uled court will in-half^ithe*56' anddi-reel it tobe placed else- ' w!love' '

AN habeas corpus had been issued, directed to the defendant, commanding him to bring up the body, of a female child, name Cornetie Harder. The child was now , ■ . . • nr, , • , , brought into court. From-the return it appeared, that it was the illegitimate, daughter of Maria Brower, now the wife of the defendant: that in 17,99 one Harder, the father of the putative father, then an infant, entered into an agreement with one 'Brower the father of the child’s , , - . . mother, by which it was agreed, that all suits concerning the child and its maintenance should cease, and that Brower should take care that the child should be suitably maintained during the first year from its birth : Harder, on his part, engaged to maintain and educate the child after the first year, until it attained the age of seven years; after which period Brower was to save harmless, and indemnify Harder from .any further expense. The child was about nine years old, and had been supported, pursuant to the agreement, until it attained the age of seven years, when it was returned to Brower, who in 1800, at the request ot the mother, the wife of the defendant, permitted the child to live with the defendant, and his wife.

E. Williams moved to have the child delivered into the custody of the putative father. He read several affidavits, to show that the child had been ill treated, and severely abused by the defendant. He observed, that whether the mother or the putative father of a bastard child was entitled to its custody, was a question not clear-, ly settled. There was some contrariety in the decisions on the subject. That while the .child required a nurse, the mother was entitled to the custody, but, afterwards, the father..^[1] As between the putative father and the parish, the right of the father must prevail.^[2] The agreement between the parents of the putative father and mother of the child, cannot affect or take away the rights of the father.

By the common law, the putative father stands in no relation to a bastard child, nor can he claim any of the rights of a father. The child is considered as fdius nullius.^[3] It has been decided in the English courts, that the putative father has no right to the custody of the child.^[4] Admitting, however, the right of the putative father; that right must be considered as waived by the agreement entered into by the parents, especially after so long an acquiescence by the father.^[5] At least, the court will give the’ child its election, whether to reside with, its mother or the putative father. The court will always interfere to protect the child, and may, at its discretion, place it in the custody of such person as they may think best.^[6]