previous
next

§ 203. “Parental Rights.”

The Parliament has power to legislate respecting the rights of parents to their children, but only in relation to divorce and matrimonial causes. Outside and independent of the area covered by divorce and matrimonial causes, the power of the States to deal with parental rights remains unaltered. The power to determine the parental rights of divorced or separated persons with respect to children of the marriage, is a necessary corollary of the power to dissolve the union by divorce, or to suspend it by judicial separation; one is an essential incident and should be the sequence of the other. Without this conjunction of power the Parliament, whilst able to pass a uniform law of divorce and judicial separation, would be unable to pass a uniform law of parental rights to be enforced in such suits. It would be anomalous for a Federal law to dissolve or suspend a marriage, and for a State law to decide the destiny of the children of the marriage.

At common law a father is entitled to the custody of the child at its mother's breast, and the court, in making an order as to the custody, pendente lite, will not, unless some good cause is shown, take away this right. (Cartledge v. Cartledge, 31 L.J. Mat. 85. Dig. of Eng. Case Law, vol. vii. p. 789.)




  ― 612 ―

In making an interim order as to the custody of the children, the court will adhere to, or depart from, the common law rule, according to its discretion. (Spratt v. Spratt, 1 Sw. and Tr. 215. Id.)

A divorce and matrimonial court has jurisdiction by its order to regulate the custody of children until they attain the age of sixteen. (Mallinson v. Mallinson, 35 L.J. Mat. 84.) But the court has no jurisdiction to make any order as to the custody of children upwards of sixteen years of age. (Ryder v. Ryder, 30 L.J. Mat. 44. Id. p. 788.)

In exercising its discretion in the matter of access to children by their parents, pending suit, the court is mainly influenced by consideration for the interests of the children. (Philip v. Philip, 41 L.J. Prob. 89.)

previous
next