The petitioner, the mother of two infaut children of tender years, asks the restoration of the children to her care and custody, from which they were taken by her husband, the father of the children. The husband and wife are living in a state of separation without being divorced. The children are both under the age of five years, and are now living with the father and under his control.
There is no question hut that at the eommon law the father, in the first instance, is entitled to the custody of his children. Courts will, however, exercise a sound dis
The act of the 20th of March, 1860, Pamph. L. 437, has materially altered the rule of the common law, and has, to a certain extent, deprived the court of the exercise of its discretion in disposing of the custody of the children. It provides that when the husband and wife shall live in a state of separation without being divorced, and shall have any minor child or children of the marriage, the court or judge before whom the children may be brought upon habeas corpus, if the children are under the age of seven years, shall make an order that they be delivered to and remain in the custody of the mother until they attain such age, unless said mother shall be of such character and habits as to render her an improper guardian for such children.
The case now under consideration falls directly within the provision of the statute. The husband and wife are living in a state of separation without being divorced. The children are uuder seven years of age. Under such circumstances the statute is imperative that the children shall be delivered .to and remain in the custody of the mother. The court has no discretion to exercise. The right to the custody of the children is transferred by force of the statute from the father to the mother. That right the court are to enforce, unless the mother shall be of such character and habits as to render her an improper guardian for her children. That contingency must be .proved to exist — it will not be .presumed. As the law
The court happily is not called upon to enter upon the details of the unhappy controversy between these parties nor to decide where the fault of the separation lies. There is nothing in the evidence, or even in the answer of the defendant himself, seriously to impeach the character or habits of the petitioner as a proper guardian for her children. The burthen ofproof is on the defendant, and he has utterly failed, nay, he has not attempted to establish the fact upon which his denial of the petitioner’s right depends. He claims, by his answer, that he is entitled to the custody of his children, and that he has never forfeited his right to the same, whereas the statute declares that the mother is entitled to their custody, and the only question is whether she has forfeited her right. The answer is consequently a defence of his own supposed
If the statute is valid, it is clear that the court is bound to order the children to be delivered to the custody of the mother.
It is argued that the statute is unconstitutional, being in violation of the vested rights of the husband. The statute does not impair the obligation of any contract, and is not unconstitutional on that ground. Ñor is it suggested that there is any other clause of the constitution with which it conflicts. But it is urged that it is in violation of the fundamental principles of government, an infringement of the rights of private property, for the protection of which government was instituted, and is therefore void.
The argument proceeds on the assumption that the parent has the same right of property in the child that he has in his horse, or that the master has in his slave, and that the transfer of the custody of the child from the father to the mother is an invasion of the father’s right of property. The father has no such right. He has no property whatever in his children. The law imposes upon him, for the good of society and for the welfare of the child, certain specified duties. By the laws of nature and of society he owes the child protection, maintenance, and education. In return for the discharge of those duties, and to aid in their performance, the law confers on the father a qualified right to the services of the child. But of what value, as a matter of property, are the services of a child under seven years of age? But whatever may be their value, the domestic relations and the relative rights of parent and child are all under the control and regula-, tion of municipal laws. They may and must declare how far the rights and control of the parent shall extend over'