51 Colo. 342 | Colo. | 1911
delivered the opinion of the court:
This is one of that unfortunate class of cases involving the right to the custody of an infant child as between the father and the mother. The proceeding was in habeas corpus. It appears from the record, that the plaintiff in error, Peter W. Breene and Bernice Breene, upon whose relation this action was brought, are husband and wife, both residents of Denver: that they had one child William Breene, born about November 20th, 1904; that after the birth of said child they continued to live together until about November, 1906, at which time they separated; that in 1907 negotiations were opened between their respective attorneys with a view to a settlement of their property rights; that at this time the child was in the exclusive possession of its mother, and had been since their separation; that on or about the 13th of October, 1907, when the child was in charge of its* nurse, the father, without the consent of, and in some manner unknown to the mother, secured possession of it, immediately taking it to the City of New York, where he placed it in the custody of one of his distant relatives, intending to have it retained there. The writ -of habeas corpus was not prayed for or issued until after the child had been removed from Colorado, but was issued immediately thereafter. Upon answer made, the respondent was ordered to have the child returned. The trial judge stated in his findings of fact that he did not regard the father' as a person unfit to have the custodv of the child, but was of the opinion that the best interest of the child, at its'then
The plaintiff in error has not seen fit to bring up the evidence for our consideration, for which reason we must .assume that it sustains the findings of the trial court, that the mother was a fit person to have the custody of the child during its tender years, and that it was for the best interest of the child, that its custody be placed with her.
The validity of the judgment is assailed upon five principal grounds. First, that as there was no action pending at the time the child was removed by its father to the state of New York, the court was without jurisdiction upon habeas corpus to order the father to return it to Colorado. Second, that under the common law the father was entitled to the custody of the children, and that as the common law has not been abrogated by any statute of this state it is controlling in a case of this kind. Third, that even if General Section 2912 of the Revised Statutes of 1908 could be held applicable, it does not apply to a case where the father and mother are living separate and apart; also in case this section is held applicable that construction of it would make it unconstitutional, for the reason that its title is not broad enough to include this portion of the act which differs materially from the substance of the former act amended. Fourth, that the judgment is contrary to the findings of the court, for the reason, that it having found the husband was not an unsuitable person to be awarded the custody of the child, it should have been so awarded to him. Fifth, that the judgment is erroneous in that it deprives the respondent of the right of visitation, and makes no provision for such visits or communication with the child by him under any regulations or at all.
In Church on Habeas Corpus, at page 170, it is said:
“The writ of habeas corpus is sometimes resorted to as a foundation for reaching persons restrained of their liberty beyond the jurisdiction of the court to which application is made, but which restraint has been caused by a person acting within the jurisdiction of the court; * * * This question comes up most frequently in cases concerning the custody of infant children; and where a person is shown to have once had the custody of a child, and he has parted with it to some one else wrongfully, that is, without legal authority, so that it is true that he cannot redeliver the child at the.time when its production is required, the child being then out of his possession, custody, and control, the fact that he has so parted with the possession of the child is no answer to proceedings to compel its production on habeas corpus, except where there is clear proof of an absolute impossibility to produce the child.”
In the case at bar the writ operated upon the person within the state; the return admitted that the child was in the custody of respondent and within his power to produce within twenty days; respondent did produce the child in obedience to the writ, and thereby
We find it unnecessary to determine the constitutionality of General Section 2912, Rev. Stat. 1908, for the reason that the great weight of authority in the United States is to the effect that the old rigid rule of the common law contended for by counsel, which gave to the father, by reason of the paternal relation, under all circumstances, except in very extreme cases, a right to the custody and services of his child, superior to that of the mother and of all others, in modern times, has been greatly modified and relaxed both in England and America. It is now almost universally conceded in both countries that this paternal right must yield and be subordinated to the interest and welfare of the cíiild under the control of the state. In this jurisdiction the paramount and controlling question by which the court must be guided is the interest and welfare of the child. — McKercher et al. v. Green, 13 Colo. App. 270; Wilson et al. v. Mitchell, 48 Colo. 454.
This power exists whether given by the section above referred to or not. The decree herein affecting the custody df the child was made by the trial court in the exercise of a discretionary power, and, as the plaintiff in error has not seen fit to bring up for our consideration the evidence upon which this discretion was based, we are not in a position to review it with a view of saying whether there was an abuse of such discretion. We understand the above is the rule, regardless of the fact that the father, as in this case, is held to be
From the record before us, we can gather several sound reasons which might have been partially controlling in the mind of the trial court in exercising its discretion. First, the age of the child (under three years) ; second, that the mother was a competent person to have it; third, that the father, while a competent person to have its custody, by his own pleadings showed that he was not possessed of sufficient means to provide and care for it as its mother was; fourth, the acts of the father in the manner he secured its possession from the mother, and in removing it to the City of New York and there placing it in the hands of strangers to the child, and his returning to Denver. These matters might have caused the court to believe that the father did not appreciate its happiness and welfare in the future, to the extent of the mother, and that, as this was intended to be his disposition of the' little one, it would thereby be removed from the affections, love and care of the mother or any one else who was near and dear to it, to be thus reared among strangers without having those feelings of love, affection and tenderness lavished upon it, which are so necessary and vital to a child of infant years, not only for its'hsppiness during that period, but in the molding and making of its character for the years to come. This meant the rearing of the child in the City of New York, when its father and mother were both residents of the City of Denver, and, so far as we are advised, intended to so remain. This would prevent the mother from having reasonable opportunity to visit her little one, and meant that it was to be reared among strangers two thousand miles from both father and mother,
The complaint that the judgment is erroneous in that it deprives the respondent of the right of visitation and makes no provision for such visits, is not properly presented by the record, for the reason that-the final decree is not embodied in the record and we are not advised what it contains.
In addition, by an examination of the original record, we find that the attorneys for the petitioner requested that the court make provisions, if the respondent so desired, for his visiting the child at reasonable times. The court was in doubt of .its right so to do in a habeas corpus action, when the court so stated counsel for the respondent replied, “I want that to appear in the record — that the court has refused to permit the father to see the child.” To which the court responded, “Did you apply for such an order ?” Counsel stated, “I did not ask for it.” The court replied, “Then let the record show that Judge Dixon refuses to ask for an order permitting the father to see the child.” The court further stated to counsel for re
For the reasons stated, the judgment is affirmed.
Affirmed.