Price, Goldmann and Lewis. The opinion of the court was delivered by Goldmann, S.j.a.d.
Mrs. M filed a complaint in the Chancery Division alleging that she is the mother of G, a 19-month-old girl; that the child was in the custody of Mrs. R who claimed her by reason of an agreement with plaintiff, and that Mrs. R refused to return G despite a demand that she do so. Plaintiff contended that Mrs. R's detention of the girl was illegal, and requested that a writ of habeas corpus issue. The writ issued and, after a full hearing, was discharged. The trial court gave custody of the infant to Mrs. R. We granted Mrs. M leave to appeal as an indigent.
Plaintiff is a woman in poor circumstances, 30 years old and the mother of four children. She married Mr. M in 1950 and had two daughters by him, respectively aged ten and eight at the time of the trial. The couple separated in 1955, Mrs. M retaining custody of the girls. She went to live with her godmother and worked in a coat factory for a year or two to support the two children. She then moved to her mother's home and worked as a housekeeper at the local hospital. In 1958 plaintiff had a son, born out of wedlock. She instituted support proceedings against the putative father, but he denied paternity and the case was discontinued. He has never supported the boy.
G was born out of wedlock on January 6, 1960. The father acknowledges paternity. At first he helped support the child, but then stopped. Plaintiff continued to work full-time at the hospital until just before G was born. After G's birth the mother worked at two jobs -- part-time at the hospital and full-time at the county welfare house. She tried to keep the family together, but could find no one who would rent to her because of the four children. As a result, she had to place them with a woman of her acquaintance, paying $54 a week for their care and support while she continued working.
Mr. and Mrs. R, both now over 50 years old, married in October 1954. This was Mrs. R's second marriage, the first (in 1934) having been terminated by the death of her husband. As a very young girl she had borne two children out of wedlock, in 1924 and 1925. Mr. R came to this country in 1955 from the British West Indies, where he had fathered two children out of wedlock, one born in 1951 and the other in 1953.
Mrs. R worked at the same hospital as Mrs. M, and on learning that plaintiff was pregnant asked if she might have the baby if it was a girl. Plaintiff said she would have to think about it. After the baby was born and plaintiff had returned to work, Mrs. R again spoke to her about the baby. Plaintiff requested a little more time to consider the matter. At that time she had no place where she and her children could live together. Finally, when Mrs. R once more asked for the baby, plaintiff turned G over to her on June 19, 1960. However, she refused to sign any adoption papers, nor did she give Mrs. R the birth certificate. Plaintiff testified that the understanding was that she could see G and that the child should "know who her mother was and that she had sisters and a brother." She admitted she did not go to see G very often "because it hurt me to go see her and I didn't want to hurt Mrs. [R] and myself."
Mrs. R testified that she met plaintiff while working at the hospital and took a liking to her. Plaintiff told her of her pregnancy and that sometimes she did not have anything to eat. Plaintiff did not ask for help, but had said she did not want the baby when it was born. According to Mrs. R, when she asked plaintiff for the child, Mrs. M replied:
"* * * 'Well, I don't want to give no papers on it.' I said, 'Well, what are you going to do?' She said, 'You take the baby. You can have the baby and keep it as long as you live, and if anything should happen to you, I want my child back.' I told her that it was no more than right that she would get it back because she was the mother."
Plaintiff fell ill in October 1960, and it was only then that she went to the welfare board for assistance. She has been on relief since. She receives $10 a week from Mr. M for each of their two daughters and $175 a month from the State. It would appear that the father of G will contribute something towards her support when and if the child is returned to the mother.
In April 1961 plaintiff moved to a five-room apartment and took the three older children back from the woman who had been boarding them. She then went to the county legal aid society to see what could be done about getting G back. Present counsel was assigned her, and on July 31, 1961 she and the attorney asked Mrs. R to return the child. Plaintiff testified that she refused to do so unless and until she was repaid what she had spent on the baby. These proceedings followed.
Mr. R's children live in the British West Indies, and Mrs. R's in Maryland. As Mrs. R expressed it, she had "not a chicken or child" when she received the baby girl from Mrs. M. Mr. and Mrs. R live in an apartment containing two bedrooms, a kitchen, dining room and bath. Another woman and her two children occupy one of the two bedrooms, and the Rs and baby G share the other. Mr. and Mrs. R testified they are church members and take G to church with them. Plaintiff goes to church "once in a while," and sends her older children, who sing in the church choir.
At the close of the hearing on the return of the writ the trial judge delivered an oral opinion in which he specifically found that plaintiff had never abandoned G, either under the statute, R.S. 9:6-1, or under the common law. He also specifically found, and emphasized, that neither plaintiff nor Mr. and Mrs. R were morally unfit to have custody of G: "I would be willing to entrust this child with either of the parties." As he viewed the case, the fact that there were illegitimate children in the past history of Mrs. M and the Rs had no real bearing on the
issue before the court. Nor, in his opinion, was the question an economic one; it did not matter who had the more money to raise the child. As always, the only question was: What is for the best interests of the child? The trial judge particularly mentioned that he had observed the parties in court. The little girl had ...