31 Ala. 479 | Ala. | 1858
— The act, entitled an act “to educate children in certain cases,” approved January 1st, 1833, declares, •“ that the courts of chancery in this State shall have power, in all cases of separation between man and wife, and neither party shall obtain a divorce, to give the custody and education of the children to either .the father or mother, as.to them may-seem right and proper; having regard to the prudence and ability of the parents, and the age and sex of the child or children.” — Paraph. Acts, 1832-3, p. 18; Clay’s Digest, 171, ■§ 20.
In Hansford v. Hansford, 10 Ala. 561, this court, speaking of the statute above copied, said, it “seems to contemplate the action of the chancellor where there is an ineffectual attempt to procure a divorce.” Under this construction, which we cordially approve, there can be no question of the chancellor’s jurisdiction, under the bill filed in this case, to make the order from which this appeal was prosecuted.
Various exceptions wex-e filed to the testimony, which
We agree with the chancellor in the conclusion, that the custody and education of the child of complainant and defendant should, for the present, be committed to the mother. She is shown by the proof to be a lady of excellent and exemplary character; while the testimony conclusively establishes the fact, that fixed intemperate habits have obtained the mastery of her husband. He admits this in his answer; and, while admissions cannot be the foundation of a divorce, they are competent evidence on the question of the custody of the child. Aside, however, from the admissions found in the answer, the testimony on this point is full.
We do not wish to be understood as laying down as a rule, that intemperance in the father will justify a court of chancery in depriving him of the society of his chil: dren. The testimony in this case goes much beyond this. It shows that Mr. Cornelius, in his frequent fits of intoxication, becomes a boisterous, raving madman; that these fits last for days, and when under their influence, the care and control of friends have to be called into requisition. A boisterous man, maddened and demented at frequent and short intervals by intoxicating drinks, who requires at such times the watchful care of friends, is certainly not a suitable guardian for either the person or moral training of a child of tender years. Moreover, it is known to all, that habits of this kind become usually more inveterate with increasing years. The welfare of the offspring is the controlling consideration, in applications such as this. We think we promote that welfare by placing the child in the custody of the mother. — See a full description of this subject in Bishop on Marriage and Divorce, chap. 31, book YI, §§ 632 to 645.
It being thus shown that orders of this kind are made for the benefit of the child, it follows, that what may benefit him to-day, may be injurious to him at some future time. Permanent fitness or unfitness for the control of
There would be much difficulty in laying down an absolute rule, fixing a period when the custody of a male child should be taken from the mother and given to the father. If all parents were alike suitable, possibly we might do so. As we before remarked, a father or mother who is every way qualified for the trust at one time, may be wholly unfit at another. "Where there is no unfitness in the mother, evidently the child should remain with her, until he has reached an age when he can dispense with those tender offices which only a mother can bestow. At what particular age that period will arrive, wo will not undertake at this time to determine. On the other hand, if one parent be a suitable custodian of the child, and the other not, and this suitableness of the one and unfitness of the other continue, the child should be put under the care of the one who is suitable, and no change should be afterwards made. This permanent unfitness cannot, however, be known in this case.
The chancellor erred in making the injunction perpetual. It should have been only until the further order of the court. After the child attains a suitable age to be removed from his mother, if Mr. Cornelius give satisfactory evidence of reformation, the chancellor, on his petition, will make the proper order in the premises. This
It is objected that the chancellor erred in dismissing, ■without prejudice, those features of the complainant’s bill which prayed for divorce and alimony. We think there are no circumstances disclosed by this record, which rendered this order proper; and having modified the decree in other respects, we will here make an order that the bill, so far as it prays divorce and alimony, be dismissed generally. — Rumbly v. Stainton, 24 Ala. 712, 719.
The decree of the chancellor is reversed;, and this court, proceeding to render such decree as the chancellor should have -rendered, does hereby order, adjudge and decree, that the said William Cornelius be, and he hereby is, enjoined from removing the said child from the care and custody of the said Emily Cornelius, until the further order of the chancellor in the premises. Let the complainant’s bill, so far as it seeks divorce and alimony, be dismissed out of court. Let the costs of the court below be paid by the said William Cornelius, and the costs of this appeal by the complainant’s next friend. — See Mosser v. Mosser, 29 Ala. 318; Gray v. Gray, 15 Ala. 779.