## Facts

- Birdie Sternberger and Louis Sternberger married in 1888.
- They lived with Birdie’s father until about 1890.
- Two children were born: a daughter and a son; the son was born prematurely and was physically fragile.
- Birdie was well educated and refined and maintained a close relationship with her father.
- Louis initially had friendly relations with his father-in-law, but Louis’s financial difficulties around 1889–1890 led to severe hostility between them.
- Around the same period, Louis began mistreating Birdie.
- In November 1895, Birdie left the marital home and went to her father’s house with both children.
- On or about November 18, 1895, Louis took the son into his own custody.
- Birdie commenced a habeas corpus proceeding seeking the return of the child, and the parties agreed the court could determine custody of both children in that proceeding.
- The matter was referred to a referee to take evidence regarding the parents’ fitness and the children’s welfare; after extensive testimony, the referee recommended that custody be placed with Birdie.
- The Special Term denied Birdie’s motion to confirm the referee’s report and entered an order committing the children to Louis’s custody.
- Birdie appealed to the Appellate Division, First Department.

## Issues

1. Under the New York statute authorizing custody orders when spouses are living apart, must a wife show legally recognized grounds for divorce or a formal separation agreement before the court may award her custody?
2. Did the Special Term err in rejecting the referee’s recommendation and awarding custody to the father, where the evidence favored custody with the mother based on the children’s welfare and the parents’ fitness?

## Decision

- The Appellate Division reversed the Special Term’s order.
- The court awarded custody of both children to Birdie Sternberger, to continue until further order of the court.

## Legal Principles

- A statute allowing a custody determination when a husband and wife are living apart does not require the wife to first establish grounds for divorce or to show that the separation rests on a formal agreement; the court may act on the fact of the separation and the situation as it exists.
- In custody disputes (including those presented through habeas corpus), the controlling consideration is the welfare of the children, assessed through evidence of each parent’s character, conduct, home conditions, and ability to care for the children.
- A custody order in this setting addresses present conditions and may be changed later if conditions materially change and a different arrangement better serves the children.
- While a trial court is not bound to accept a referee’s recommendation, an appellate court may reverse where the record, including the evidence taken on the reference, shows that the children’s welfare is better served by the other disposition.

## Conclusion

People ex rel. Sternberger v. Sternberger et al. reversed a Special Term order that had refused to confirm a referee’s report and had placed two young children with their father after the parents separated. The Appellate Division held that a wife living apart from her husband could seek a custody award without first proving divorce grounds or a formal legal separation, and it treated the children’s welfare and the parents’ fitness as the decisive considerations. On the record—especially given the son’s fragile health and the evidence regarding the parties’ conduct and home life—the court concluded custody should be awarded to the mother until further order.


People ex rel. Sternberger v. Sternberger et al., 12 A.D. 398 (1896)