157 Ind. 1 | Ind. | 1901
This was a proceeding of habeas corpus instituted by appellant, Solomon M. Berkshire, against James W., Edward W., and Augusta Oaley, to obtain the custody of his daughter, Nora B. Berkshire. It appears that of the defendants, appellees herein, James W. Caley is the grandfather, Edward W., is the uncle, and Augusta Caley is the aunt by marriage, of the child in controversy.
Appellant avers in his petition that Nora B. is his child; that she is past the age of nine years, and that he is lawfully entitled to her custody; that said defendants have seized her body and restrained her of her liberty and deprived him of the custody or possession of said Nora B., by forcibly keeping her in their possession in White county, Indiana, and that such restraint is unlawful and without right. The writ was awarded and made returnable on August 24, 1899. On that date the defendants appeared and made returns to the writ. Edward W. and'Augusta Caley upon their part, for return thereto, alleged and set forth that they neither jointly nor separately at the commencement of the action or at the time of their return to the writ had the custody or control of the said Nora B. Berkshire, and in no manner did they deprive her of her liberty. The defendant, James W. Oaley, for return, alleged and represented to the court that he had the body of said Nora B. before it, but he averred that it was not true that he restrained her of her liberty as charged by the petitioner, but alleged the facts to be that said child remained with him as a part of his family of her own free will and choice; that
After unsuccessfully moving to make this return more specific, appellant filed his answer thereto, whereby he admitted the fact of the divorce from the mother of the child, that the custody of the latter had been transferred to its said mother by means of an agreement, as averred in the return, and that she retained the same until her death, but he denied or controverted the charge made against his character and fitness, and alleged that his present wife is a moral and Christian woman, and that his condition and means are such that if the said Mora B. is placed in his care and custody she will secure good attention and moral and physical training, and the advantages of a good education, which she can not secure if she remains in the custody of the defendant; that the defendant, James W. Caley, is a man who has no wife; that he uses profane language in the presence of his family, and also uses intoxicating liquors; that he has taken said Mora B. Berkshire to places where intoxicating liquors were drank, and that he is not a fit or suitable person to have the care and custody of said child.
Upon the issues joined between the parties, the court heard the evidence, and thereupon found in favor of the defendants, and, over appellant’s motion for a new trial, adjudged that he take nothing by his action and that he pay the costs of the suit, and further adjudged that Mora B. Berkshire, the girl in controversy remain in the custody of the defendant J ames W. Caley. The petition proceeds upon the theory that appellant as the father of the girl is entitled to have the custody and control of her, and that she is illegally held by the defendants and thereby restrained of her liberty. The principal contention of counsel for appellant is that the latter is shown by the evidence to be a suitable person to have the custody of his child and that the court erred in denying him this right. Each party examined numerous witnesses in the lower court and a great mass of
The evidence when considered as a whole does not favorably impress us in respect to appellant’s fitness to have the custody, pontrol, and education of his said child; neither is it shown that her custody should have been awarded to him by the court upon the grounds that it would conduce to her future welfare or best interests. In fact the evidence in respect to the fitness of the parties to have the custody and care of the child in dispute may be said to preponderate in favor of the appellee James W. Oaley. It appears that the girl at the time of the trial was nine years old and over, and that appellant and his wife, her mother, were divorced in 1897. They had two children, — said ISTora B., then about seven years of age and a boy still younger. By a written argreement, into which the parties entered at the time of the divorce, they divided the property which they had between them, and further provided that the mother
As a general rule there can be no question but what the father, prima facie, is entitled to the custody of his legitimate minor children, hut this right is not an absolute one, hut depends upon the circumstances in each particular case, and the question of the custody, control, and education of a minor child, when involved, is, under the facts in the case, lodged in the sound discretion of the trial court, subject, of course, to review upon appeal to a higher court. Darnall v. Mullikin, 8 Ind. 152; Child v. Dodd, 51 Ind. 484; McKenzie v. State, ex rel., 80 Ind. 547; McGlennan v. Margowski, 90 Ind. 150; Bryan v. Lyon, 104 Ind. 227, 54 Am. Rep. 309.
Our statute, §2682 Burns 1894, relating to the custody of minors upon the part of their guardians and parents, provides: “Every guardian so appointed shall have the
While the legal rights of a father to have the custody of his minor child should be respected by a court, still the general welfare or best interest of tlie infant is paramount in consideration and is of controlling influence, and the rights of the parents must be considered as secondary or subordinate to the welfare of the child. Jones v. Darnall, 103 Ind. 569; Bryan v. Lyon, 104 Ind. 227; Husse v. Whiting, 145 Ind. 580; Hurd on Habeas Corpus, 461.
The tendency of the modern decisions of our courts has been to affirm that the father’s right to the custody of his minor child is not absolute, but that it is secondary or subordinate to the welfare and happiness of the child, and that such welfare is the paramount or controlling question to be determined in providing for the infant’s custody and control. Neither of the parents of the minor, in the eye of the law, can have such an interest in their child as will be
As there is evidence which fully justified the court in refusing to disturb the present custody and control of the child in controversy, we cannot .hold that the court by such
The court refused to allow appellant, upon the trial, to attack the character of the daughter of Augusta Caley. There is no error in this ruling, as the character of the daughter of Mrs. Caley was in no manner involved in the case.
We have considered all of the questions argued by appellant, and conclude that the record presents no reversible error. The trial court, by its judgment, did not decide for what period of time the child in dispute should remain in the custody and control of appellee, nor for what time appellant should be deprived of her custody, and if the conditions or character of the parties in the future should be changed, appellant may then be in a position successfully to demand the custody of his said daughter.
Judgment affirmed.