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F.W. and P.W. v. D.S.

Decided: March 13, 1964.

F.W. AND P.W., PLAINTIFFS,
v.
D.S., DEFENDANT



Consodine, J.c.c. (temporarily assigned).

Consodine

Plaintiff (former wife of defendant) and her husband seek the continuance of custody of an infant female child who has been in their uninterrupted custody since November 7, 1960, as against defendant, the father of the child. The child was born on June 6, 1960. Plaintiff and defendant had been divorced in September 1957. The custody of the child of that marriage was granted to plaintiff with right of visitation to defendant. Plaintiff subsequently married the coplaintiff here in November 1957.

Defendant after the divorce lived with a married and undivorced woman who bore him the infant female on June 6, 1960. The child's birth certificate listed the mother's husband as the father of the child. The mother of this child died five months (November 4, 1960) after her deliverance. Defendant then left the infant child with his former wife, their child, and her husband. Subsequently on May 18, 1962, defendant -- now married -- sought from plaintiff the custody of the child. Plaintiff refused. This action followed.

On December 7, 1961, prior to the marriage of defendant to his present wife, this defendant caused or participated in the filing of an action in the Union County Court to modify the birth certificate of the infant to his name.

In the verified complaint he stated that the infant "is in his care and custody."

No guardian ad litem was appointed to protect the rights of the infant, who could by virtue of this suit be declared illegitimate at the instigation of her alleged father and her legal father.

On December 14, 1961, after a hearing in which attorneys appeared for S. and for the legal father but without independent representation on behalf of the infant, an order was entered which illegitimatized the infant. The order recites: "and the Court being of the opinion that the appointment of a guardian ad litem to protect the interest of said minor * * * is not necessary." The minute sheet of the court reflects that only S. and the legal father were sworn at the

hearing. But see In re Rogers , 30 N.J. Super. 479, 485 (App. Div. 1954), certification denied, Morristown Trust Co. v. Neeld , 16 N.J. 193 (1954).

Plaintiffs in this action now move for summary judgment on the pleadings and the law. The only question is the right of the defendant (as to whom there is necessarily for the purpose of this motion an assumption that he is the father of the child) to the custody of the child as opposed to all others. The questions of abandonment of the child to plaintiffs and custody based on the best interest of the child are not here involved.

At common law an illegitimate child was said to be the child of nobody -- nullius filius. 1 Blackstone, Commentaries, p. 459; 2 Kent's Commentaries, p. 214. See too, Wright v. Wright , 2 Mass. 109, 110 (Sup. Jud. Ct. 1806) ("the relative of no one"); Friesner v. Symonds , 46 N.J. Eq. 521 (Prerog. 1890), where, citing with approval the language of Chief Justice Parsons in the Wright case, Vice Ordinary Van Fleet stated at p. 527: "He is nullius filius -- the son of no one." And in the State Board of Child Welfare v. P.G.F. , 57 N.J. Super. 370, 375 (J.D. Rel. Ct. 1959),

"* * * and therefore filius populi, i.e. , the child of the people * * *."

In Friesner v. Symonds, supra , it was held that an illegitimate child, on the death of its mother, becomes an orphan. Lord Kenyon, C.J., held in Rex v. Soper , 5 Term R. 278 (K.B. 1793), that the putative father of an illegitimate child had no right to the custody of it.

Over more than the past hundred years statutes in our and other states have sought first the protection of the public against a charge for support vis a vis liability imposed on the putative father therefor, and latterly the protection of the status of the illegitimate against "the slings and arrows of outrageous fortunes" that in history, in literature, and in life have been ...


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