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Ex parte Marti

Superior Court of Delaware, Kent County

March 15, 1951

Ex parte MARTI.

Habeas corpus proceeding by Elizabeth Savage Marti against Jacob A. Marti for the custody and control of the minor child of the parties. The Superior Court, Herrmann, J., held that the welfare of the child would be best served if the petitioner had custody and control.

Order awarding custody of child to petitioner upon conditions.

Where parents of minor child were separated, and mother lived with child's maternal grandmother but child lived at home of child's mother's brother during period mother had custody of child, as both mother and maternal grandmother were employed full time, and father was door-to-door salesman and while child was living with him child would have to accompany him on his route, leaving home in morning and returning late at night, welfare of child would best be served if mother had custody and control of child, and therefore custody would be awarded mother upon condition that child live with her, except that mother could make reasonable arrangements for care of child during hours of her employment.

Page 689

[46 Del. 314] Howard E. Lynch, Jr., Dover, for petitioner.

Arley B. Magee, Jr., Dover, for respondent.

HERRMANN, J., sitting.

By writ of habeas corpus directed to the respondent, Jacob A. Marti, the petitioner, Elizabeth Savage Marti, seeks the custody [46 Del. 315] and control of Jacob A. Marti, Jr., the minor child of the parties.

The petitioner and the respondent were married on November 1, 1947. The child was born of the marriage on June 6, 1948. The parties lived together in Delaware until November 17, 1949, when they separated. At the time of the separation, the petitioner took the child to the home of the petitioner's mother in Paterson, New Jersey. The child remained in the petitioner's custody from the time of the separation until November 22, 1950. During that period, the petitioner lived with her mother, but the child, for the most part, lived at the home of the petitioner's brother which was located approximately one mile away from the petitioner's residence. The child lived with the petitioner on weekends only, although the petitioner frequently visited the child at her brother's home during the course of the week. This arrangement for the care of the child was the result of the fact that both the petitioner and her mother were engaged in full time employment.

On November 22, 1950, the respondent obtained the petitioner's consent to take the child to the home of the respondent's mother for a visit, upon the condition that he would return the child to the petitioner within the week. The respondent did not return the child to the petitioner, and from that time until the present the child has been living with the respondent at Cheswold, Delaware.

The respondent is a door-to-door salesman of cooking utensils. His work requires daily travel by automobile. As part of his sales technique, the respondent often arranges dinner parties at the homes of customers or potential customers. Upon

Page 690

these occasions, the respondent prepares the dinner and thereby demonstrates his wares. While living with the respondent, the child accompanies the respondent each day on his sales route, leaving home in the morning and often not returning until late at night. The dinner parties arranged by the respondent frequently take [46 Del. 316] place in the evening and the child accompanies the respondent on such occasions.

The respondent has not been able to afford a housekeeper or other person to care for the child. He has been having financial difficulties and he is now on notice to vacate his living quarters for non-payment of rent.

The petitioner is morally a proper person to have the custody of her child. The homes of the petitioner's ...


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