 |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | |
Scottish Court of Session Decisions |
||
|
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Marchetti Petitioner [1901] ScotLR 38_696 (07 June 1901) URL: http://www.bailii.org/scot/cases/ScotCS/1901/38SLR0696.html Cite as: [1901] SLR 38_696, [1901] ScotLR 38_696 |
||
[New search] [Printable PDF version] [Help]
Page: 696↓
Parent and Child — Custody — Petition by Parent for Custody — Question of Status — Foreign Law.
A father presented a petition for custody of his pupil child, who was nine years of age, alleging that while absent from his house with the child his wife had disappeared, after posting letters in which she said that by the time they were received she and the child would be dead; that he had discovered where they were; that he believed that his wife intended to destroy herself and the child when she threatened to do so, and that there was danger of the threat being carried out unless the child were instantly removed from her custody.
The petitioner moved the Court, in pronouncing the usual first order, meanwhile to grant warrant to messengers-at-arms and other officers of the law to take the child into their custody and deliver him to the custody of the petitioner. The Court granted warrant as craved.
After the warrant was executed and the petitioner had obtained custody of the child, the mother lodged answers containing averments of cruelty on the part of the petitioner. One of the Judges saw the child and ascertained that he was equally attached to both his parents. The petitioner declared his willingness to take his wife back to America, where his home was, but she declined to go.
The Court, in respect that the petitioner had obtained custody of the child, found it unnecessary to pronounce any further order, and dismissed the petition.
Hutchison v. Hutchison, December 13, 1890, 18 R. 237, followed.
In a petition by a father, whose home was in the United States, for the purpose of recovering the custody of his pupil child from its mother, to whom the petitioner alleged that he was married, the mother lodged answers containing averments to the effect that although she had gone through a form of marriage with the petitioner in Italy, their marriage was illegal by the law of Italy as well as by the general consent of Christendom, the parties being uncle and niece, and maintained that the child being consequently illegitimate she was entitled to the custody. The Court declined to consider the question of status involved in this defence.
In a petition presented by Frank Marchetti, merchant, Pawtucket, Rhode Island, U.S.A., and his mandatory, for custody of his pupil child Thomas Marchetti, who was nine years of age, the petitioner craved the Court to find him entitled to the custody of his said child; to decern and ordain his wife Mary Marchetti forthwith to deliver up the said child to the petitioner or to any other person having his authority, and “meanwhile to grant warrant to messengers-at-arms and other officers of the law to take into their custody the person of the said child wherever he may be found and deliver him into the custody of the petitioner; and to authorise and require all Judges Ordinary in Scotland and their procurators fiscal to grant their aid in the execution of such warrant, and to recommend to all magistrates elsewhere to give their aid and concurrence in carrying such warrant into effect; and further, to prohibit and interdict the said Mary Marchetti, or anyone acting on her behalf, and all others from withdrawing or attempting to withdraw the said child Thomas Marchetti from the jurisdiction of your Lordship's Court.”
The petitioner averred that in September 1900 his wife and child left home for a short holiday at a seaside resort about thirty miles from Pawtucket, and that on 22nd September his wife suddenly left the hotel where she and the child were residing, “after having posted letters to the petitioner, the proprietor of the said hotel, and a number of friends, stating that she had resolved to drown herself and the said child, and that by the time the said letters were received she and her said child would be dead.”
The petitioner also averred that his wife and child had been traced to Scotland, and
Page: 697↓
were residing with an ice-cream vendor in Broxburn, and further averred as follows—“The respondent is a person of immoral character and of violent and ungovernable temper, and incapable of taking charge of a child. The petitioner believes that it was her intention to destroy herself and the said child when she last threatened to do so, and he has reason to believe that there is danger of the threat being carried out unless the said child is instantly removed from her custody.” Counsel for the petitioner when moving for intimation and service moved the Court in the same interlocutor to grant warrant in terms of the prayer of the petition quoted supra, and referred to the case of Hutchison v. Hutchison, December 13, 1890, 18 R. 237. He stated that the petitioner was on his way to this country, and that arrangements had been made for placing the child in neutral custody to await his arrival.
On 21st May 1901 the Court ordered intimation and service, and granted warrant in terms of the prayer of the petition quoted supra.
Mrs Marchetti lodged answers, in which she made averments of cruel and harsh treatment on the petitioner's part towards herself and her child, and alleged that blows and threats were a daily experience, and that the child lived in extreme terror of his father. She also averred that although she had gone through a form of marriage with the petitioner in Italy, their marriage was illegal by the law of Italy, as well as by the general consent of Christendom, the parties being uncle and niece.
At the hearing in the Summar Roll on 6th June, counsel for the petitioner moved the Court to proceed by way of remit to find out the wishes of the child.
Counsel for the respondent maintained that the child was illegitimate, and that the respondent was consequently entitled to the custody.
The Court declined to consider the question of status involved in this defence.
One of their Lordships saw the child, and ascertained that he had a great affection for both his parents, and would prefer to remain with both. The petitioner, who had arrived in this country, was willing to take his wife back to America with him, but she declined to go.
The parties having failed to come to any arrangement, the Court, following the course adopted in Hutchison, supra, pronounced this interlocutor:—
“The Lords having resumed consideration of the petition, with the answers thereto, and heard counsel for the parties, in respect that the custody of the child Thomas Marchetti has been recovered by the petitioner, Find it unnecessary to pronounce any further order: Dismiss the petition and decern,” &c.
Counsel for the Petitioner— Dewar. Agents— Cornillon, Craig, & Thomas, S.S.C.
Counsel for the Respondent— A. J. Young. Agents— Robertson & Wallace, S.S.C.