20 N.M. 335 | N.M. | 1915
OPINION OF THE COURT.
(after stating the facts as above).— Appellee concedes that the adoption proceedings are not binding upon appellant, as she was not made a party or served with notice therein. This being true, the only question for determination here is whether, upon the facts as disclosed by the record and found by the court, judgment was properly rendered for the respondent.
“The boy, it is true, expresses a preference to remain with the appellee; but, while in doubtful cases the wishes of a child of this age will be sought, and to some extent be observed, we cannot for a moment agree that a boy of 13 can be allowed, at pleasure, to abandon his filial duties, and select elsewhere a home more agreeable either to his desires or his wordly interests. So to hold -would simply be to offer a premium to the children of the poor to shirk the duties to which their station in life has called them, and to permit them, at the sacrifice of all the natural affections, to set about bettering their condition, at a period of life when the law dedicates both their persons and their services to parental control.”
This case is to be distinguished from those cases, wherein the parents have surrendered voluntarily the custody of their child, or children, to others, who have cared for them for years, when the parents seek to recover them. In such eases some of the courts refuse to aid them. 'Here the child was stolen from tire mother, who ever since has expended all the money she could spare in a ceaseless search for him, which was finally rewarded by finding him in the possession of the respondent.
“The discretion to be exercised is not an arbitrary one; but, in the absence of any positive disqualification of the father for tlje proper discharge of his parental duties, he has, as it seems to us, a paramount right to the custody of his infant child, which no court is at liberty to disregard. And while we are bound also to- regárd the permanent interests and welfare of the child, it is to be presumed that its interests and welfare will be best -promoted by continuing that guardianship which the law had provided, until it is made plainly to appear that the father is no longer worthy of the trust.”
“A mother of high character, who was well able to- take care of her infant daughter, was entitled to her custody, though parties who had attempted to adopt the child under proceedings subsequently declared void were in better pecuniary circumstances than the mother.” Carter v. Botts, 77 Nan. 765, 93 Pac. 584.
For other cases in which the courts have held similarly, see Com. v. Briggs, 33 Mass. (16 Pick.) 203; Terry v. Johnson, 73 Neb. 653, 103 N. W. 319; Sloan v. Jones, 130 Ga. 836, 62 S. E. 21; Ex parte Jones, 153 N. C. 312, 62 S. E. 217, 138 Am. St. Rep. 670; Hammond v. Hammond, 90 Ga. 527, 16 S. E. 265; Wakefield v. Ives, 35 Iowa, 238.
In this case the burden was upon the appellee to show that the natural mother, because of some vice, or some other lawful reason, was not the proper person to have the care and custody of her child. This she failed to do, and the court found:
“That said petitioner, Mrs. F. A. Foeks, has been a good, responsible, and worthy mother, and one against whose character or capacity to take care of said child, Wallace Peters, there are no charges.”
Such being the state of the case, the trial court should .have awarded the custody of the child to the appellant.
The judgment of the trial court will be reversed, with instructions to enter judgment awarding the custody of the child, Wallace Peters, to the petitioner, Mrs. F. A. Foeks; and it is so ordered.