189 Wis. 431 | Wis. | 1926
Ordinarily the basis of the issuance of the writ of habeas corpus is an illegal detention, but in the case of the writ sued out for the detention of a child the law is not so much concerned about the illegality of the detention as the welfare of the child, and in proceedings in habeas corpus for the possession of a minor the question of physical restraint is given little consideration where a lawful right is asserted to retain possession of the child. The ascertainment and enforcement of the custody of minor children by the use of the writ of habeas corpus is equitable in its nature, and in such cases the question of personal freedom is not involved, for an infant, from humane and obvious reasons, is presumed to be in the custody of someone until it has attained its majority. The court, when asked to restore an infant, is not bound by any mere legal right of parent or guardian, but is to give it due weight as a claim founded on human nature, and generally equitable and just. The court is in no case bound to deliver a child into the custody of any claimant, but should, in the exercise of a sound judicial discretion after a careful consideration of the facts, leave it in such custody as the welfare of the child at the time appears to require. 12 Ruling Case Law, 1214-1216.
In the instant case it may be conceded that there was no valid commitment of the child to the custody of Mathilda McLeod by the probate court of Marquette county, Michigan. We will presume, however, that the proceedings of
It further appears that the county court of Marquette county, Michigan, on September 7, 1923, vacated the order and commitment of April 22, 1914, and ordered the custody of the child restored to her mother. Thereafter, upon a habeas corpus proceeding instituted by the mother in the circuit court for Marinette county, Wisconsin, before L. M. Evert, circuit court commissioner, judgment was duly entered on the 23d day of October, 1923, awarding the custody of the minor to Mr. and Mrs. McLeod, which judgment remains a valid and subsisting judgment.
The circuit court wrote an opinion setting forth in detail the facts in the case, and concluding that the best interests of the child required that she remain in the custody of Mathilda McLeod. The child was then more than sixteen years of age, and testified on the hearing that she did not desire to return to the custody of her mother but wished to remain with Mrs. McLe<od.
The evidence discloses without question that the mother was an unfit person to have possession of the child at the time the child’s custody was taken from her. At that time the child was only four years of age. Since then it appears that the mother has reformed, and at the time of the hearing was capable of giving her child a comfortable home. However, the daughter, because of her absence from her mother since early childhood, and because of her mother’s former delinquencies and present status in life, has no affection for her mother. On the other hand, the mother appeared to- have love for the child. It would serve no use
The court will give much consideration in a case of this kind to the desire of the infant who has reached an age of judgment or discretion. Sec. 3962 (now sec. 319.01, Stats.); In re Goodenough, 19 Wis. 274, 278.
The plaintiflhin error claims that the order of the county court of Michigan, attempting to restore the custody of the minor to her mother, is binding on the courts of this state. There is no merit to this claim. When the child was removed from the state of Michigan with the consent of the county court, that court lost jurisdiction of the child.
By the Court. — The judgment of the circuit court is affirmed.