The plaintiff instituted a proceeding by habeas corpus in the district court of Douglas county to recover the possession of his infant son, Haeckel Humboldt Giles. A largе amount of testimony was taken before the district coui't, and judgment was rendered by it, that the defendant retain thе custody of the child. From that judgment the cause is brought into this court by petition in error.
It appears from the record that in October, 1865, Wm. Giles and Mary A. Giles were married in the state of Illinois, and resided in that state as husband and wifе until July, 1889; that four children were born to them, of which the two oldest are of age; that the third child was about twenty yeаrs of age; and that the youngest son, the subject of this controversy, is about ten years of age. The testimony also shows that the plaintiff, for many years prior to 1889, had been the traveling agent of a firm in Chicago engagеd in the sewing machine business. His territory seems to have covered a considerable part or all of Wisсonsin, Minnesota, etc., so that he was absent from home neai’ly all the time. As testified to by his daughter,,
On the 11th of July, 1889, thе defendant was granted an absolute decree of divorce from the plaintiff in error, her husband, by one of the courts in the stale of Illinois, on the alleged ground of desertion and failure to support.
From the evidence in the record before us, it may be questioned whether a divorce should have been granted. So fаr as we can judge there was no such desertion and failure to support as are contemplated by the statute. But that question is not before the court.
In the decree there is no provision for the care of. the minor children. There is some testimony tending to show that, after the divorce was obtained, the defendant- said to the plaintiff that she was willing that he should take their youngest son and care for him, but that he objected on the ground that he had no home to place him in, and said if she would care for him he would pay her five dollars per week. This sum he seems to have paid up to December 6, 1889, when the defendant removed to Omahа, bringing the child with her, and the plaintiff now brings this action to obtain the custody of the child. The testimony shows that he has no home of his own; that he proposes to place the child in the family of a friend in Aurora, Illinois. We have nо means of knowing the qualifications of this family to care for and train a child of tender years; nor, indeed, is thеre any evidence of a valid contract
Under the stern rules of the common law, when the wife and mother was but little better than a slave, the father was given the custody of his children, without question. This rule of the сommon law has not generally prevailed in this country.
In United States v. Green,
In Corie v. Corie,
In Sturdevant v. State,
The testimony of the father tends to show that the mothеr is an industrious woman and of good character. He, at least, has been willing to trust the child in her custody, and the principal objection made, by him at this time is that she has removed from the state of Illinois, íhis removal was occasioned by her entering into the employment of a company at a good salary so that she might
Where there are minor children, the separation of the parents by divorce almost necessarily will cause more .or less pain to one or both of the pаrties. This is almost unavoidable, and is a matter for the serious consideration of those who, through real or fancied grievances, seek relief in the divorce courts, but neither parent has an absolute right to the custody of the minor children, but the court will consider their best interest and make such orders in the premises as seem to be just and proper. The judgment of the court below is right and is
Affirmed.