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SECTION VII.

CUSTODY OF ILLEGITIMATE CHILDREN.

The English cases show a want of unanimity of opinion upon this question also.'

In Rex v. Soper,' Lord Kenyon, Ch. J., said that the putative father of a bastard child had no right to the

if the children were under the age of seven years, that they should be delivered to and remain in the custody of the mother until they should attain such age, unless the mother should be an improper guardian for such children.

The court held the law to be constitutional and not void as being incompatable with the fundamental principles of government.

In The State v. Baird, 18 N. J. (3 C. E. Green), 194, a habeas corpus was sued out by the relator to compel his wife and her father to produce Adeline T. Baird, then in her thirteenth year, James H. Baird, then in his eleventh year, William T. Baird, then in his ninth year, Robert B. Baird, then in his seventh year, Edward B. Baird, then in his fifth year, and George D. Baird, then in his second year, the six children of the relator and Adeline W. Baird, his wife.

It was held, "The father is entitled to the custody of his children; and in no case will the courts take them away from him when he has them in custody, fairly obtained, except where the father, from notorious grossly criminal conduct, or great impurity of life, with which his children come in contact so as to be in danger of contamination, is an improper person to have the custody of his own children. Upon a habeas corpus brought by a father for his children, the court will not, as a matter of course, order them to be delivered up to him, but only in case they are improperly restrained of their liberty. The office of the writ is not to recover the possession of the persons detained, but to free them from all illegal restraints upon their liberty. If the infants are of sufficient years or discretion to judge for themselves, they will be examined, and if they are satisfied and wish to remain, the court will hold that they are not unduly deprived of their liberty, and will permit them to go with which of the parties they may elect. When they are too young to exercise any discretion, the court will determine for them, and adjudge the custody to such parent as may be considered most advantageous for the infants.

All the children were adjudged to remain in the custody of the mother; the two youngest, because under seven years of age, and the mother a fit person to have the custody of them; the four eldest, because upon examination they proved not to be restrained by their mother, those capable of making their election preferring to remain with her; and in the case of those not so capable,

1 See Forsyth's Custody of Infants, 77.

25 T. R. 278.

custody of it. And when this case was cited in R. v. *Mosely,' and see R. v. Hopkins,' where a writ of [522 habeas corpus was moved for to bring up the body of a bastard infant, of which the defendant was the father, the

because it was adjudged to be for their benefit and advantage to be brought up with the others."

In a note to the case, page 204, it is said, "By the decree of the Court of Appeals, the two youngest children were adjudged to remain with their mother, and the eldest if she so desired; the other three children to be delivered into the custody of the father."

Indiana. Darnall v. Mullikin, 8 Ind. 152. In this case husband and wife had been divorced, and the care and custody of their infant child had been awarded to the wife. Afterwards, the wife having married and she and her second husband being about to remove from the state taking the child with them, the husband petitioned the court to award the guardianship and care of the child to him, but it appeared in evidence that the parties were equally able and willing to provide for the infant's nurture and education and equally qualified in respect of morals. The inferior court having decided that the mother was entitled to the custody of the child, the Supreme Court refused to interfere with the judgment, remarking that such cases are very much in the discretion of the inferior courts, and that where that discretion does not appear to have been abused, the Supreme Court will not interfere with their judgments.

In State v. Banks, 25 Ind. 495, it was held that the father was the natural guardian of his infant child, and is entitled to the custody of it. But if, by reason of immoral or vicious habits, he is unfit to have the custody and training of his child, the court will refuse to award it to him, or will even direct it to be taken from him.

California. In Wand v. Wand, 14 Cal. 513, it was held that a wife divorced from her husband for extreme cruelty on his part, is entitled to the custody of their female child of tender years, the wife being blameless. The father has a right to see the child at all convenient times. In the opinion the court approve of this doctrine. “Upon principle, therefore, the rule would seem to be, that prima facie, after a separation, the father is entitled to the custody of the children, unless there be a divorce for his fault; in which case the mother is entitled; yet, that this prima facie right must always be subject to the superior claim, that is, the good of the children.”

Iowa. In Hunt v. Hunt, 4 Iowa (Greene), 216, the facts appeared as follows: The respondent, Mary Hunt, had obtained a divorce from the relator. The judge certified, in his opinion, "that the decree of divorce was made on the ground of an obvious incompatibility in the tempers and dispositions of the parties, which made it necessary for their happiness and well-being that they be sepa rated, that the decree was made without more blame to the one party than the other." The parties had three children. With their acquiescence, the court

1 5 East, 224.

27 East, 579, and 1 Madd. Ch. Pr. 432, n. z.

same learned judge said: "Where the father has the custody of the child fairly, I do not know that this court would take it away from him, though I do not mean to impeach the propriety of the case cited. But where he has got possession of the child by force or fraud, as is here suggested, we will interfere to put matters in the same situation as before."

ordered that the two oldest, being sons, be committed to the care and custody of the father, and that Louise, the youngest child, should, until further order of the court be made, be consigned to the care and keeping of the mother. At that time Louise was between three and four years old. The father applied for an order that he might have the care and custody of the child. It was held where the child is of such age that it can without injury, be withdrawn from maternal nursing, the father has legal right to its custody, society and service, and is legally liable for its support and education. A court should not assume the wardship of a child, unless the parent labor under a moral and natural disability which would disqualify him for the performance of his duties to the child. The consent of the father that the mother might have the custody of the child for the time being, cannot deprive him of his superior right to the child, no more than such consent would not release him from his obligation to the child. The court in maintaining the superior rights of the father, said, We are aware that in this, our day, the spirit of progress is abroad in the land, but, whilst we would not obstruct its onward career, to trample over error and oppres sion, we think that it is well to observe and maintain those great and cardinal principles upon which the integrity of the social compact must ever depend. The just appreciation of the rights and duties of the marriage contract is essential to the existence of civil and christian society."

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Cole v. Cole, 23 Iowa, 433, it was held in awarding the custody of a child, the court will consider its future well-being. So where it appeared that the father was addicted to intoxication, profanity and obscenity, and of ungovernable temper and irreligion; and the wife although feeble and fretful, was of irreproachable morals, the custody of a son thirteen years old was awarded to her. The court said, "The tendency of modern decisions is to deny that the husband's right to the custody of the child is an absolute one, and to regard the welfare and future well-being of the child in awarding its custody."

Ohio. In Gishwiler v. Dodez, 4 O. S. 615, it was held that in a controversy between the father and mother for the custody of an infant child, incapable of electing for itself, the order of the court should be made with a single reference to its best interests. Neither of the parents has any rights that can be made to conflict with the welfare of the child. Ranney, J., in delivering the opinion of the court said: "A majority of my brethren think the law correctly stated by the Supreme Court of New York." (Barry's case, 25 Wend. 83). "I must hear further before I am prepared to come to this conclusion. It rather seems to me, that no active interference between father and mother

Yet the learned judge does not appear to have been consistent in that opinion; for in an anonymous case, cited by Sheppard, Sergt., arguendo, in the case of Strangeways v. Robinson,' where a writ of habeas corpus was sued out on behalf of the mother to prevent a

is allowable, unless the good of the child demands it; and, that as a court would not take from the mother and commit to the custody of the father a child, capable of electing, against its consent, it ought not to do it by an exercise of its judgment for one incapable, unless it is plainly seen that the welfare of the child will be thereby promoted. Whatever may be the rights of the father in a claim for guardianship, or in a common law action against third persons for harboring the child, I do not think that the custody of the mother of her infant child can be said to be either improper or illegal, so as to authorize the employment of the habeas corpus. The right of the father to the custody and service of his child are founded upon the correlative duty of supporting and maintaining it, but when this duty is assumed and discharged by the mother, both parties are remitted to their natural rights, as the authors of its being, and stand upon a footing of perfect equality. While all will agree, that a mother of unexceptionable character should not be deprived of the custody of a very young child, I cannot believe that, because she may have reared it until others can bestow the necessary care and attention, it can be taken from her, and the feelings of both mother and child disregarded, for no better reason, than that it is the sovereign will of her husband to do so."

Alabama. In Ex parte Boaz, 31 Ala. 425, it was held that on habeas corpus sued out by the mother, the court could not take an infant child from the custody of its father, and give it to the mother, when no improper restraint of the infant is established.

When the morals, safety, or interests of the children, strongly require their withdrawal from the custody of the father or mother, the Court of Chancery will interfere, and place the care and custody of them elsewhere. Striplin v. Wase, 36 Ala, 87.

In Virginia it was held that a wife having left her husband without good legal grounds, and taken their child with her though there is no other imputation upon her conduct, upon a decree for divorce a mensa et thoro at the suit of the husband, on the ground of desertion, the child will be restored to the husband, though it is a female and but three years old; and though the husband's treatment of his wife has been coarse, rude, petulant, close, exacting, and penurious. Carr v. Carr, 22 Gratt. 168.

South Carolina. In Ex parte Hewitt, 11 Rich. (S. C.) L. 326, the doctrine was thus laid down: Upon a question between father and mother as to the custody of their infant child, the law gives the preference to the father, as the head of the household, and without sufficient cause shown, the custody will not be given to the mother.

14 Taunt. 506.

legitimate child, little more than seven years old, from being carried to the West Indies by his father, though the father had obtained the possession of the child from a school both by fraud and force, he held that as he found it in the possesion of the father he must leave it there, though he said he would have preferred to have left the child in the custody of the mother.

In a late case, Ex parte Knee,' the Court of Common Pleas did take away an infant illegitimate child from the custody in which it had been placed by the father, although there was no imputation against him, and ordered it to be delivered to the mother, who was willing and anxious to receive it.

Sir J. Mansfield said: "It is not unlikely, indeed, that by granting this application we may be doing a great prejudice to the child, but still the mother is entitled to the child if she insists upon it."

523] *It is, however, by no means clear that such a right on the part of the mother would now be recognized. In Rex v. Hopkins,' Lord Ellenborough expressed a doubt whether the court could interfere by a writ of habeas corpus on behalf of the mother of an illegitimate child, who had no legal right to the person of the child, the question of guardianship belonging to another forum, and the child not being of an age to complain for itself of any illegal restraint on its person. As, however, the infant had been taken away from the mother by force, the court ordered it to be restored to her."

The last case in which the point was much considered, In re Lloyd,' does not clear away all the difficulty.

"An illegitimate child, between eleven and twelve. years of age, was produced under the care of a female attendant, by the father with whom it resided, in the court of Common Pleas, in obedience to a writ of habeas corpus, and as he made no claim to the custody, the court allowed the infant to choose for herself the party with

11 Bos. & Pull. N. R. 148.

2 7 East, 579.

3 3 Man. & Gr. 547.

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