87 P. 787 | Idaho | 1906
This is an application for a writ of habeas corpus by the mother to obtain possession of her now about twelve years of age daughter. The facts of the case are substantially as follows: It appears that the petitioner intermarried with one Thomas Stewart in the state of Oregon in the year 1893 or 1894; that after said marriage they lived near Jacksonville in said state; that on the twenty-fifth day of February, 1895, the child Phoebe M. Stewart, was born; that the married life of the petitioner and her said husband was not congenial, and when the child was about eight months old the petitioner left her husband, taking the child with her, and left it with an aged couple residing at Medford, Jackson county, state of Oregon. The child remained there until about the month of November, 1897, about two years, when it was delivered by its father to the daughter of Mrs. Yates, to be delivered to the defendant in this proceeding, who was the sister of the said Stewart, where the child remained until the present time. The father died about a year after the child was placed in the hands of Mrs. Yates. It appears from the record that the petitioner, after leaving the child with the aged couple referred to, went to California and remained at different places in that state for some time; she thereafter went to Nevada and was there married to a butcher. It also appears that her married life with the butcher was not congenial and she left him and returned to California. Afterward she left California and went to Tombstone, Arizona, where about a year prior to this time she married her present husband, Barney Andrino. It appeal's that Andrino is engaged in the saloon business and has a home in said town and is worth about $7,000; that he has a
Some technical questions have been raised in this case with regard to collateral attacks on orders or judgments of the probate court in guardianship matters, but, as we view it, it is not necessary for us to pass upon those questions. It is contended by counsel for plaintiff under the provisions of section 5774, Revised Statutes of Idaho of 1887, as amended by Session Laws of 1899, page 302, that the mother of a minor child being competent and not unsuitable, is absolutely entitled to the guardianship of the minor. That, we think, is' the correct construction of the provisions of that section,
This is not the case of an adult appealing to the aid of habeas corpus to obtain his freedom from illegal restraint, but the writ in this case was granted to inquire whether the plaintiff is entitled to the custody of said minor child. The proceeding is not for the purpose of setting the child free, but to determine whether the petitioner is entitled to its custody, and the correct view or rule is that the jurisdiction of the question of the custody of a child under a writ of habeas corpus is of an equitable nature, and courts are given large discretion in the matter.
As stated in Hurd on Habeas Corpus, page 528: “The welfare of the infant is the polar star by which the discretion of the court is to be guided. ’ ’ Of course the legal rights of the parent must be respected, and the law contemplates that those rights may have been abandoned, surrendered, transferred or forfeited, for it is declared in said section 5774 as amended that either the father or the mother of the minor child, being themselves respectively competent to transact their own business and not otherwise unsuitable, must be entitled to the guardianship of the. minor. Under the facts presented by the proofs and record, it is clear to us that the plaintiff surrendered her legal rights as mother to the care and custody of said minor when it was an infant about eight months old, and did not see it nor give its care and custody any attention for a period of about eleven years, except an occasional letter making inquiry in regard to the whereabouts of the child. It is true she sent about ten dollars to the old folks with whom she left the child. But during the eight or nine years.that the defendant has had charge of the child the record and evidence fails to show that the petitioner has exhibited any motherly feeling or affection for the child in any way or manner. It is true she wrote perhaps once a year for the purpose of keeping track of the child, but she never sent her so much as a doll
On the other hand the conduct of the mother furnishes reason for supposing that she had surrendered the care and custody of the child to the defendant for more than eight years, during most of the conscious lifetime of the child, with the understanding that she would not reclaim it. She made no offer to contribute to its support. By her own acts of omission she has permitted, allowed and encouraged the child to fix her affections on her aunt and cousins, among whom it has resided since its infancy, and it is clear to .us that the condition of things cannot now be changed without endangering the happiness and welfare of the child. The welfare of the child is the main consideration for the court under the facts of this ease, and nothing that would throw any light upon the matter should be overlooked by the court. As the minor is now a well-developed, bright girl nearly twelve years of age, the court questioned her in regard to her wishes and desires in the matter. Not that the child’s wishes should control in the matter, but that the court might more wisely exercise its discretion and might learn its feel
It was stated by counsel for the plaintiff on the oral argument of this case that the plaintiff desired to give the child better educational advantages than she was receiving in the Grangeville public schools, and that she would be willing to pay thé expenses of placing and maintaining the child in some good school. That is a matter to be presented to the probate court of Idaho county, and in case the plaintiff desires to have the child placed in some good school in this state and will pay the expenses of the child therein, the probate court must see that it is done. It is not intended to deprive the mother from seeing and visiting the child at all proper times and places.
The application of the petitioner is denied and the child remanded to the care and custody of the defendant,, Mrs. Sarah E. Yates, until the further order of the court. Costs are awarded to the defendant.