## Facts

- John A. Barry married Eliza Mercein in 1835; he had children from a prior marriage and had lived in Nova Scotia, while Eliza was from New York.
- The couple moved to New York City in 1836, where their daughter, Mary, was born.
- Evidence indicated significant marital discord, including allegations that Barry treated Eliza harshly and exercised controlling conduct.
- After Barry’s business failed, he decided to return to Nova Scotia; Eliza refused to go and stayed in New York with Mary in her father Thomas R. Mercein’s home.
- Barry demanded that Mercein compel Eliza to return with him and also demanded the child; Mercein refused to coerce his adult daughter.
- Barry sought habeas corpus against Mercein, alleging unlawful restraint of Eliza and Mary; Mercein and Eliza asserted Eliza was free to leave and was not confined.

## Issues

1. Whether habeas corpus may be used to compel an adult wife, not under physical restraint, to return to marital cohabitation with her husband.
2. Whether habeas corpus should be used to transfer an infant from the mother’s care to the father based solely on the father’s claimed superior custodial right.
3. Whether custody on habeas corpus turns on an absolute paternal right or on the child’s welfare and permanent interests.

## Decision

- The court denied the application for habeas corpus.
- The court refused to treat Eliza’s voluntary residence with her father as an unlawful restraint remediable by habeas corpus.
- The court declined to award custody of the infant to Barry, concluding the child’s welfare favored remaining with the mother and maternal family.

## Legal Principles

- Habeas corpus addresses unlawful restraint; it is not a device to enforce marital authority or compel cohabitation when an adult is at liberty to choose her residence.
- A third party’s provision of shelter to an adult family member, without confinement or coercion, does not constitute custody or restraint justifying habeas relief.
- In determining custody of an infant on habeas corpus, a court of equity considers the child’s welfare and permanent interests as the controlling standard.
- The father’s custodial claim is not absolute and may be denied when transfer would be contrary to the child’s well-being, particularly given the child’s age and circumstances.

## Conclusion

The court refused to use habeas corpus to force an adult wife to return to her husband and held that an infant’s custody should be resolved by the child’s welfare rather than by an asserted absolute paternal entitlement, leaving the child with the mother and maternal family.


People ex rel. Barry v. Mercein, 8 Paige Ch. 47 (N.Y. Ch. 1839)