170 Wis. 543 | Wis. | 1920
Lead Opinion
The following opinion was filed December 2, 1919:
No complaint is made against, and under the record none could well be raised to, the finding of the court that Mr. and Mrs. Goetsch, after receiving the child in July, 1915, gave it a good and suitable home, treated it with the same care, attention, and tender regard as though it were their own, and have become and are very fondly attached to the child, as the child is to them.
Joseph Goetsch on this appeal insists that the • testimony does not warrant the conclusion arrived at by the trial court that the mother and her husband are suitable and proper persons to have the care, custody, and bringing up of the child. No useful purpose would be served by commenting upon the evidence in the record on this question. It satisfies us that the finding made by the court below in this regard cannot be disturbed and warrants the conclusion reached by the trial court in that the mother is now a suit
Whatever right to the custody of a child is recognized to be in the father or mother by such legislative provisions as are found in secs. 3964 and 3965, Stats., or under the rules of the common law, must stand aside if a recognition of such a right in a parent would materially interfere with the paramount right of the child, the being most concerned, to have its welfare considered and conserved by the court. This has been so often declared that it needs no further discussion. Jensen v. Jensen, 168 Wis. 502, 504, 170 N. W. 735; State ex rel. Strachota v. Franz, 166 Wis. 32, 34, 163 N. W. 191.
That such a rule has always been the key used to solve the troublesome and delicate problems arising in conflicts over the possession of a child may be seen in such cases as Sheers v. Stein, 75 Wis. 44, 43 N. W. 728; Johnston v. Johnston, 89 Wis. 416, 62 N. W. 181; Markwell v. Pereles, 95 Wis. 406, 69 N. W. 798; McChesney’s Appeal, 106 Wis. 315, 82 N. W. 149; Lemmin v. Lorfeld, 107 Wis. 264, 83 N. W. 359; In re Stittgen, 110 Wis. 625, 632, 86 N. W. 653.
Such consideration for the welfare of the child, however, does not mean that its custody may be auctioned off to him who will make the highest bid in the shape of greater financial standing, more comfortable surroundings, or larger opportunities for the future. If a good and suitable home is ready and offered by one attached by the ties of nature to the child, those ties can neither bé disregarded nor severed because some one better situated is able to offer more. 29 Cyc. 1590, 159.1; Buchanan v. Buchanan, 93 Kan. 613, 144 Pac. 840.
The court below, therefore, having reached the conclusion that the mother and her husband can now furnish a suitable home and proper care for this child, very properly
Upon the other provision of this judgment we can find no warrant for any determination by the court in this proceeding of anything in the nature of money compensation to Mr. Goetsch for the care of the infant, much less so for any direction that the change in the custody of the child shall be conditional upon the payment of any such sum. No such issue was framed by anything suggested in the petition or pleadings herein, nor was it a necessary or proper one for determination by the court below. So much, therefore, in the judgment or order of the court below as attempts to fix any amount due from the mother of the child to the Goetsches must be vacated and set aside.
Having rightly determined that the custody' of this child' belongs to the mother, the body of such child cannot be held as security for the payment of money. A' child can be neither bartered nor pledged. Although the ministrations of the Goetsches to this little child have been of the best and' tenderest, and although the mutual affections that have grown up between them and this child are very strong and deserving of the highest praise, yet such can never ripen into anything in the nature of a lien upon a human being. The control by a creditor over the custody of the person of a debtor as security for the debt has long since been abolished. It never has existed and certainly does not now exist over the body of a child for any monétary claim. The scales in this case having been properly found to be inclined to the side of the mother as to the custody of this child, they cannot be tipped to the opposite by loading the other side with any monetary consideration.
By the Court. — So much of the judgment as awards the custody of the child Gladys May Bare to Mattie Bare Crone , is affirmed. So much thereof as determines that, there is due any amount for the care of the child and as requires
Rehearing
Joseph Goetsch moved for a rehearing.
In support of the motion there was a brief by Lockney & Lowry of Waukesha, attorneys, and Arthur H. Koe,nitzer of Milwaukee, of counsel.
In opposition thereto there was a brief by Frame & Blackstone of Waukesha.
The motion was denied, with $25 costs, on February 10, 1920.
