26 Kan. 650 | Kan. | 1881
The opinion of the court was delivered by
In this case of the petition of Morris A. Chapsky for the possession of his minor child, counsel have in their arguments expressed very feelingly and truthfully the embarrassments' and difficulties which surround the decision of a case like this. • These arise, not because there is a conflicting question of fact to be settled by the court, for that is a matter of every-day occurrence in judicial proceedings; it is not that it is a question between a grown man on one side and a grown woman on the other, for .we could dispose of every question affecting simply them, without any embarrass
The questions of law which are involved in a case like this are few in number, and, I think, not subject to much doubt. They may be summed up briefly thus: The father is the natural guardian and is prima facie entitled to the custody of his minor child. This right springs from two sources: one is, that he who brings a child, a helpless being, into life, ought to take care of that child until it is able to take care of itself; and because of this obligation to take care of and support this helpless being arises a reciprocal right to the custody and care of the offspring whom he must support; and the other reason is, that it is a law of nature that the affection which springs from such a relation as that is stronger and more potent than any which springs from any other human relation.
The second proposition of law is, that a child is not in any sense like a horse or any other chattel, subject-matter for absolute and irrevocable gift or contract. The father cannot, by merely giving away his child, release himself from the obligation to support it, nor be deprived of the right to its custody. In this it differs from the gift of any article which is only property. If to-day Morris Chapsky should give a horse to another party, that gift is for all time irrevocable, and the property never can be reclaimed ; but he cannot by simply giving away his child relieve himself from the obligation to support that child, nor deprive himself of the right to its custody.
I might say here, that the statute has provided for a relinquishment through probate court proceedings, which may be considered (but that is outside this case) irrevocable.
The third proposition is, that a parent’s right to the custody
The fourth proposition is, that though the gift of the child ; be revocable, yet when the gift has been once made and the , child has been left for years in the care and custody of others, who have discharged all the obligations of support and care which naturally rest upon the parent, then, whether the courts will enforce the father's right to the custody of the child, will depend mainly upon the question whether such custody will promote the welfare and interest of such child. This distinction must be recognized. If, immediately after the gift, reclamation is sought, and the father is not what may be called an unfit person by reason of immorality, etc., the courts will pay little attention to any mere speculation as to the probability of benefit to the child by leaving or returning it. In other words, they will consider that the law of nature, which declares the strength of a father's love, is more to be considered than any mere speculation whatever as to the advantages which possible wealth and social position might otherwise bestow. But, on the other hand, when reclamation is not sought until a lapse of years, when new ties have been formed and a certain current given to the child's life and thought, much attention should be paid to the probabilities of a benefit to the child from the change. It is an obvious fact, that ties of blood weaken, and ties of companionship strengthen, by lapse of time; and the prosperity and welfare of the child depend on the number and strength of these ties, as well as on the ability to do all which the promptings of these ties compel.
Now, passing to the facts, which I shall only outline: Morris A. Chapsky married the mother of this child ten years ago. The marriage was not acceptable to his parents, though for no reason that we are advised 'of, involving the character of any of the parties. Returning home immediately after his marriage, the father, commenting upon the fact of the marriage, which had been made without his consent, was not satisfied, and bade him start out for himself. Some criticism has been placed upon this conduct, which, we think, is not deserved. It is often best for a young man that he should be turned out upon his own resources and compelled to struggle for himself; and that his father was not destitute of affection for his child, is patent, from the fact that he made him a gift of money largely in excess of that which most young men have to start with. Whether his judgment was good, or otherwise, c%s no figure in this case. He started out with this money, and wandered around, as a young man is apt to do, and, drifting from place to place, finally came penniless to Kansas City. He struggled for a series of years under pecuniary embarrass
And first, we remark that the child has had, and enjoys to-day, good advantages, and its welfare has been promoted, and is promoted to-day. No one has said that this child has lacked anything which a child should have, and the testi
Again, while there is more wealth on the side of the father, •and pecuniary advantages are held out for her future — greater than those, perhaps, which the respondents can present — yet we cannot be insensible to the surroundings under which the ■child would be placed if committed to its father. The grandfather has been on the stand before us, and not merely from the testimony adduced from his relatives and neighbors, but frcm his appearance and manner on the stand, evidently he is a gentleman of character and responsibility, not destitute of affection, and one who has provided a comfortable home .and is in a position to give to the child all these advantages. Yet the child if it goes, goes to the care of its father; and •while there is no testimony showing that the father is what might be called an unfit person, that his life has not been a moral one, yet we can but think that it is developed, both by testimony and his manner and appearance on the stand, that there is a coldness, a lack of energy, and a shiftlessness of disposition, which would not make his personal guardianship •of the child the most likely to ripen and develop her character fully. He seems to us like a man still and cold, and a warm-hearted child would shrink and wither under care of
Again, and lastly, the child has had, and has to-day, all that a mother’s love and care can give. The affection which a mother may have and does have, springing from the fact that a child is her offspring, is an affection which perhaps no other one can really possess; but so far as it is possible, springing from years of patient care of a little, helpless babe, from association, and as an outgrowth from those little cares and motherly attentions bestowed upon it, an affection for the child is seen in Mrs. Wood that can be found nowhere else. And it is apparent, that so far as a mother’s love can be equaled, its foster-mother has that love, and will continue to have it.
On the other hand, if she goes to the house of her father’s family, the female inmates are an aunt, just ripening into womanhood, and a grandmother; they have never seen the child; they have no affection for it springing from years of companionship. While she is a child of perhaps a favorite son or brother, she is also the child of a disowned or repudiated daughter-in-law and sister-in-law, and the appeal which the child will make naturally — and the child is one to make a strong appeal to anyone — will always be shadowed and clouded by the fact that she comes from one who was not a favorite in that family.
Human impulses are such that doubtless they would form an affection for the child — it is hardly possible to believe otherwise; but to that deep, strong, patient love which springs from either motherhood, or from a patient care during years of helpless babyhood, they will be strangers.
They cannot have this; and to my mind, I am frank to say, this last is the controlling consideration. And these three considerations are those which compel us to say that we cannot
The judgment of the court therefore is, that the child will be remanded to the respondents; and the petition is dismissed,, at the cost of the petitioner.