¶1The Recorder said that it was one of the most difficult of questions to determine what should be done with young children, when them parents so far forgot their duties to themselves and them offspring as to live apart from each other, and thus placed an insuperable difficulty in the way of performing their joint dnty. When divorces were granted the courts disposed of that question, but when no divorce was applied for, and where, as in this case, the separation was voluntary, it was no easy matter to determine between the respective rights of the parents.
¶2But on habeas corpus it was not always necessary to pass upon the question of right, but more properly to ascertain what was best for the child. Where the parents chose to present themselves with conflicting rights, the proper inquiry was as to what was most conducive to the welfare of the child, and where the child was old enough to have an intelligent choice, it was the practice of the court to permit it to determine the question, relying upon that instinct which would teach it to say where it would be best off, and be treated the best.
¶3This child was old enough and intelligent enough to know that, and he should therefore consult her in the matter, not meaning to leave it to her absolute disposal, but inclined to attach great weight to her choice.
¶4*11The Recorder then asked the girl with whom she would prefer to live. She promptly answered, “ with mother.”
¶5The Recorder so ordered, for the reason that the choice accorded with his own convictions, founded upon the facts of the case, that such a course would be most conducive to the welfare of the child, and because it was not necessary, under the circumstances, to pass upon the rights of the parents, they being left to their resort to the proper tribunal for that purpose.
¶6[This case was decided before the case of The People v. Chegaray, 18 Wend. 637.]