Schneider v. Hasson

Parke, J., delivered the opinion of the Court. On April 3, 1928, Laura V. Batey obtained an absolute divorce from her husband, Ered Batey. The spouses had shortly before agreed, subject to the approval of the chancellor, with reference to alimony and the custody and support of their infant child, in the event of a divorce being decreed. This agreement between the father and mother provided that on their divorce the wife should not receive any alimony, and that the custody of the infant, Mildred V. Batey, should be awarded to Adeline Hasson, an unmarried aunt of the mother, with the right of the parents to see the child, at reasonable hours, as often as they might properly desire; and that the father assume the support of the child, whose custody should always be subject to the jurisdiction and further order of the Circuit Court No. 2 of Baltimore City.

At the foot of this agreement was indorsed a declaration, over the signa- ' ture of Adeline Hasson, that she would accept the custody of the infant, and would at all times perform the necessary duties with respect to the care, custody, support and education of the child. The agreement, with this indorsement, was filed in the cause, and the decree passed adjudged and ordered that this agreement be ratified and confirmed, subject to the further order of the court in so far as it affected the guardianship, custody, maintenance and support of the child. The great aunt of the child received the child into her care and keep. The father moved to' California, and did not contribute to the support and maintenance of the infant, and the custody of the great aunt was not attempted to be disturbed until September 20th, 1930, when the mother filed a petition 1 that she be awarded the custody and care of her daughter, and be charged with her support and maintenance.

The great ⁵⁴⁹ aunt resisted this petition, and the matter was set down and testimony was taken before the chancellor, who decreed that Adeline Hasson retain the custody of the infant, with the right of the mother to have her daughter with her from Friday afternoon until seven o’clock P. M. of Sunday evening, and to visit her, as provided in the original agreement, on other days of the week, and, further, that Adeline Hasson should pay for the care, support, and maintenance of the child so long as she should retain the custody of the infant. From this decree, the mother has appealed. The petitioner’s mother died when the petitioner was but seven years old, and Hiss Hasson assumed the mother’s place and duties, and reared the petitioner, who continued to live with her aunt until Hiss Hasson went to California for a visit of nearly two years. During this separation, the petitioner married and the child was born.

On the return of the aunt to Baltimore, the niece, child and husband, who was out of work, went to live in the home of the aunt, and, except for a short interval, this arrangement continued until January, 1928; the husband, however, having deserted his wife, and the wife working and paying the aunt eight dollars a week for board. These were the circumstances which had preceded the filing of the bill for divorce, and, since the decree, the petitioner, in February, 1929, married Ernst Schneider, and, in order to save the money with which to start housekeeping in their own house, Mrs. Schneider continued to work for more than a year after her second marriage. The young couple now own a comfortable home in the suburbs of Baltimore, and, since September, 1930, the mother, for the first time, has been able to give her daughter, now ■seven years of age, a suitable home in which the child wfill receive the constant care, discipline, and supervision of the mother. The parent requested the great aunt to restore the child to be reared, educated, and supported by the mother and stepfather, but the request was declined.

There is nothing shown on the record in the character, disposition, position, and financial responsibility of the mother and her husband, on the one hand, or of the aunt on the ⁵⁵⁰ other, that -would justify the court in declining to award the custody of the infant to either one or the other. However, the agreement and decree