192 Ind. 268 | Ind. | 1922
This was a habeas corpus proceeding by appellants against appellees to obtain possession of an infant child named, Robert L. Addington, about four years old. A Hearing of the cause resulted in a judgment awarding the custody of the child to appellees. The appellants appeal and assign as error that the court erred in overruling their motion for a new trial. The only specifications of error named in said motion are: 1. The decision of the court is not sustained by sufficient evidence. 2. The decision of the court is contrary to law.
Robert L. Addington was at the time of the bringing of this action in the possession of appellees. The parents of the child were Carl Addington and Vina Adding-ton, his wife, who are both dead. The father died January 12,1920, and the mother died January 14,1920. On January 30, 1920, the Wayne Circuit Court entered an order adopting the said child to these appellants. At the time of such adoption the child was living and mak
August 20, 1920, appellants went to the home of appellees and requested and demanded the possession of said child, and appellees refused to surrender him to them. The said Robert L. Addington, was born December 16, 1916, and had lived with appellees since October, 1919.
The appellants are the paternal grandparents of said infant, Robert L. Addington, and they adopted said child as their heir at law and they claim that they as such adopting parents are entitled to its possession, control, care, custody, education and training, if they be suitable persons, as against any other person regardless of-the fitness or qualification of such other person. They claim that this right is given them by §3065 Burns 1914, §2518 R. S. 1881, which provides that:
“Every guardian so appointed shall have the custody and tuition of such minor, and the management of such minor’s estate during minority, unless sooner removed or discharged from such trust: Provided, That the father of such minor (or if there be no father, the mother, if suitable persons respectively) shall have the custody of the person and the. control of the education of such minor.”
“In this country the doctrine is universal that the courts of justice may, in their sound discretion, and when the morals or safety or interests of the children strongly require it, withdraw their custody from the father and confer it upon the mother, or take the children from both parents and place the care and custody of them elsewhere. * * * The tendency of our courts today is to consider more and more the rights of the children when opposed to the legal rights of the parents. The modern view is that the right to create children does not include the right to ill-treat them, that the child has a right to a fair start in life and the parent will not be allowed to keep control of him where unwilling or unable properly to care for his oifspring.” 1 Schouler, Domestic Relations (6th ed.) §§743, 744.
In determining the custody of a child his welfare is the paramount consideration. In re Hickey (1911), 85 Kans. 556, 118 Pac. 56, 41 L. R. A. (N. S.) 564. As sustaining this principle see, Joab v. Sheets (1885), 99 Ind. 328; Jones v. Darnell (1885), 103 Ind. 569, 2 N. E. 229, 53 Am. Rep. 545; Berkshire v. Caley (1901), 157 Ind. 1, 60 N. E. 696; Hussey v. Whiting, supra; Schleuter v. Canatsy (1897), 148 Ind. 384, 47 N. E., 825; Shoaf v. Livengood (1909), 172 Ind. 707, 88 N. E. 598; Sturtevant v. State (1884), 15 Nebr. 459,19 N. W. 617, 48 Am.
In Mahan v. Hendricks, supra, which was a habeas corpus proceeding by a father for the custody of his infant child, the court said: “The case is a close one upon the evidence, and this court would not have been justified in disturbing a judgment which would have committed the care and custody of the child to the parents of appellant, or that of his sister. In either case the child would probably have been properly cared for and reared, but with the witnesses before it, the court below was in a situation to form a better conclusion as to the welfare of the child, which was the chief consideration, than this court can possibly be, upon so' close a case, since there was evidence to support its finding and it clearly appears that the child will be well taken care of and provided for, we are not justified in disturbing the judgment upon the weight of the evidence.”
In the instant case the trial court heard many witnesses relative to the claims of the respective parties
Judgment affirmed.
Travis and Townsend, JJ., concur in the conclusion.