MATTER OF WELCH ET AL., 74 N.Y. 299 (1878)

IN THE MATTER OF THE APPLICATION OF EDWIN WELCH et al., GUARDIANS OF THE PERSON OF GEORGE M. WELCH, AN INFANT, FOR THE CUSTODY OF SAID INFANT.

Court of Appeals of the State of New York.Argued May 24, 1878
Decided September 17, 1878

Page 300

Edward T. Bartlett, for appellants.

Page 301

Albert Stickney, for respondent.

RAPALLO, J.

The order appealed from affects only the temporary custody of the infant, who is of tender years, and is declared to be without prejudice to any future application by the petitioners for such custody. It does not determine the question of legal right, or of the validity of the appointment of the petitioners as guardians but as appears from the opinions was based upon considerations affecting the health and welfare of the child which in the judgment of the court below rendered it expedient to leave it temporarily in the custody of the aunt, to whose care it was committed by the mother. Such considerations may justify a court in withholding the custody of a child even from its legal guardians, and they are so purely matters of discretion, that we are not disposed to review the conclusions of the court which had all the parties before it, in such a case, unless some manifest error, or abuse of discretion is made to appear. After an examination of all the evidence we find no such ground for reversal, and therefore without passing upon the question of legal right we affirm the order.

All concur, except MILLER and EARL, JJ., absent.

Order affirmed.

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