MURIEL H. CLARK vs. HUGH T. CLARK.

MURIEL H. CLARK vs. HUGH T. CLARK.

321 Mass. 682

October 9, 1947 - October 31, 1947

Middlesex County

Present: QUA, C.J., LUMMUS, RONAN, SPALDING, & WILLIAMS, JJ.

Custody of a boy about three years of age properly was awarded to his father, libellee against whom was entered a decree nisi of divorce on the ground of cruel and abusive treatment of the libellant, the boy's mother, where it appeared that he lived with his father and the father's married sister, that his environment was good, that the sister took excellent care of him; that, although there was no finding of any criminal conduct on the mother's part, she sometimes became under the influence of intoxicating liquor and had been indiscreet with men; and that "the child's welfare will be better served if he stays with the father."

LIBEL for divorce, filed in the Probate Court for the county of Middlesex on July 22, 1946.

The case was heard by Poland, J.

E. J. Bushell & R. G. Howland, for the libellant, submitted a brief.

J. P. McNamara, (E. A. Grant with him,) for the libellee.

LUMMUS, J. In this libel for divorce brought by Muriel H. Clark against her husband Hugh T. Clark, the Probate Court entered a decree on February 26, 1947, granting the libellant a decree nisi on the ground of cruel and abusive treatment, but providing that "said libelee [shall] have the care and custody of John Hugh Clark, their minor child." Muriel H. Clark appealed. The only question argued concerns the right to care and custody of the child, who was born on May 6, 1944. The evidence is not reported, but the judge reported the material facts.

The child lives with his father and a married sister of the father. His care and environment are admittedly good, and the sister takes excellent care of him. The mother sometimes becomes under the influence of liquor, and has been indiscreet with men, although there is no finding of any

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criminal conduct on her part. The judge found that "the child's welfare will be better served if he stays with the father."

In Richards v. Forrest, 278 Mass. 547 , 553, Rugg, C.J., said, "It has been said that the first and paramount duty of courts is to consult the welfare of the child," and that that rule applies in "proceedings between disagreeing parents respecting the custody of the child." That rule has never been challenged since, and still prevails. In Erickson v. Raspperry, 320 Mass. 333 , 335, it is spoken of as the "most fundamental" principle. Applying that principle to the facts found by the judge, we find no error in the decree entered by him.

Decree affirmed.