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S. v. H.M. and E.M.

Decided: October 16, 1970.

S., ON BEHALF OF HER DAUGHTER, L., AN INFANT UNDER THE AGE OF 14 YEARS, PLAINTIFF-APPELLANT,
v.
H.M. AND E.M., DEFENDANTS-RESPONDENTS



Goldmann, Leonard and Mountain. The opinion of the court was delivered by Leonard, J.A.D.

Leonard

Plaintiff appeals from a judgment discharging a writ of habeas corpus and awarding custody of her illegitimate infant daughter to defendants.

In 1960 plaintiff, then 14 years of age, after experiencing difficulties with her mother, moved in with defendants, her aunt and uncle, and remained there until 1968. L. the daughter here involved, was born on July 15, 1964. About a year later, by reason of plaintiff's alleged conduct, her aunt demanded that she leave. Plaintiff complied but left her infant daughter with defendants. Some six months thereafter plaintiff returned to the house, remained about two or three weeks, and then disappeared.

In June 1966 plaintiff, who was then living with her mother, gave birth to her second illegitimate child. In early 1968 she went on county welfare and took an apartment in Camden. Then defendants returned L. to her, subject to week-end visitations with them. In June 1968 the infant was brought to defendants' home where she has remained ever since. The aunt testified that at the time she went to plaintiff's apartment on a number of successive days but could not find her. About a week later plaintiff called and stated she had been out "balling." Still later she visited her aunt but did not ask to take the child with her. However, shortly before instituting the present

proceedings, plaintiff demanded the return of the child but defendants refused. On that day plaintiff filed a criminal complaint in the municipal court charging her aunt with kidnapping.

Three days later (August 5, 1968), plaintiff instituted the present habeas corpus proceeding. The next day defendants appeared in court with the infant. The case thereupon proceeded to trial, which was continued to and concluded on August 27.

Plaintiff first contends that the trial court lacked subject matter jurisdiction to award custody of the child to defendants in this habeas corpus proceeding filed in the Law Division of the Superior Court. She argues that the only issue raised by the proceeding was the illegal detention of the child, and that defendants did not counterclaim for nor otherwise affirmatively seek custody. Further, she asserts that child custody matters are cognizable only in the Chancery Division of the Superior Court. This contention and plaintiff's arguments in support thereof are without merit.

In English v. English , 32 N.J. Eq. 738 (E. & A. 1880), a husband filed a habeas corpus petition, requesting that two of his children, allegedly illegally taken by his wife, be brought into court and that he be awarded their custody. In affirming the trial court's award of the custody of the children to the wife the court stated:

The jurisdiction of the court of chancery to settle and dispose of the care and custody of infants, through a procedure like this, is established. The parties, in their litigation, have, by their pleadings and proofs, presented issues within the cognizance of that court, under its general jurisdiction as public guardian of the rights and interests of infants. Such jurisdiction is not, by the use of the writs of habeas corpus to bring the infants into court, cut down and restricted to those limits which outline and bound a strict proceeding on habeas corpus. The writ serves a purpose merely ancillary to the more general design of the suit, to secure a definite disposition of them, as wards of the court. [at 742]

See In re Alsdorf , 142 N.J. Eq. 246 (Ch. 1948). This doctrine has also been applied to proceedings involving children

born out of wedlock. See In re Mrs. M. , 74 N.J. Super. 178 (App. Div. 1962); In re R.L. , 137 N.J. Eq. 271 (Ch. 1945); In re Petagno , 24 ...


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