This is a habeas corpus proceeding instituted by appellant against appellees to obtain the custody of his infant daughter, Kuth A. Gilmore. The writ was duly issued, and a return thereto made by appellees. Appellant’s exception to the return was overruled, and a reply filed. The court, upon hearing the evidence, made a general finding in which it is said “that the father, Eussell H. Gilmore, is a proper person to have the care and custody of such child, but that the best interest of the child will d<¿ conserved by leaving the child in the care of the defendant Elora D. Kitson.” It was accordingly adjudged that the
The assignments of error, stated in different forms, require us to determine the correctness of this finding and judgment.
The controlling facts shown by the evidence, briefly summarized, are as follows: Appellant is thirty-two years of age, and lives in Indianapolis, where he has lived all his lifetime, with the exception of two years. He is a linotype operator, has permanent and steady employment, and earns about $100 per month. He was married June 20, 1900, and lived with his wife at his home until eleven months prior to her death, when, on account of failing health, at the request of her sister, his wife went to her sister’s home at Bloomington, where she remained until her death, May 5, 1904. Buth A. Gilmore wa^ born during wedlock on September 25, 1901. Appellee Flora D. Kitson and her mother waited upon appellant’s wife during her last illness, except for eight weeks, when they had the assistance of a nurse. Appellant paid the nurse and the doctors, and sent to his wife and child, while at the home of appellees, money, gifts and flowers. Appellant lives with his mother, a widow, and single sister, in a comfortable six-room house situated in a good neighborhood. He smokes cigarettes and cigars, and drinks beer occasionally, but otherwise is of good habits, good moral character, good disposition, industrious, kind and affectionate. His mother and sister are of good character, kind and loving disposition, fond of children, and desirous of caring for the child as a member of the family.
When appellant’s wife was very near to death, appellees called in some neighbors, and in their presence, as well as the presence of the family, appellant’s wife asked him to promise to give the custody of the child to Mrs. Kitson; but this he very kindly, but firmly, refused to do. During the funeral exercises Mrs. Kitson remained with the child, locked in a rear room of the house, and caused a policeman to be present for the purpose of preventing any effort to take the child from her, and she afterwards refused to allow appellant to take it from her house. After the death of Mrs. Gilmore, Mrs. Kitson was, without appellant’s knowledge or consent, appointed guardian of Kuth A. Gilmore by the Monroe Circuit Court, upon a showing that the child had articles of personal property bequeathed to her by her mother, of the value of $50. Appellee Flora D. Kitson is
3. The mother can not, by testamentary provisions or otherwise, deprive the father of his right to the custody of their minor child after her death. Moore v. Christian (1879), 56 Miss. 408, 31 Am. Rep. 375; Stapleton v. Poynter (1901), 111 Ky. 264, 62 S. W. 730, 98 Am. Dec. 411, 53 L. R. A. 784; State, ex rel., v. Reuff (1887), 29 W. Va. 751, 2 S. E. 801, 6 Am. St. 676; Taylor v. Jeter (1862), 33 Ga. 195, 199, 81 Am. Dec. 202; In re Neff (1899), 20 Wash. 652, 56 Pac. 383.
In the case of State, ex rel., v. Banks (1865), 25 Ind. 495, the controversy was between the father and the grandfather of the child—the mother being dead—and this court said: “The father is the natural guardian of his infant child, is responsible for its raising and education, and has the right to its custody. This is the well-settled rule, and the statute is simply declaratory of the right as it existed at common law. The law, however, has a tender regard for the interest of the infant, and in case it is made to appear that the father, by reason of his immoral and vicious habits and conduct, is rendered unfit to have the custody and training of his infant child, the court will refuse to award it to him, or will even direct it to be taken from him and placed where its moral training will be properly cared for. But if
In Commonwealth v. Briggs (1834), 16 Pick. 203, 205, the court said: “The court will feel bound to restore the custody, where the law has placed it, with the father, unless in a clear and strong case of unfitness on his part to have such custody.”
The case of Watts v. Lively (1901) (Tex. Civ. App.), 60 S. W. 676, was a habeas corpus proceeding between the father and the maternal grandparents of the child, and the court of civil appeals of Texas very appropriately said: “In order to overcome the presumption of law that the best interest of the child would be subserved by placing it in the custody of the father, who is responsible for its 'being, and who, under the laws of God and of man, is held responsible for its care and protection, it must plainly appear that the father is unworthy of the trust.” See, also, Wishard v. Medaris (1870), 34 Ind. 168; Child v. Dodd (1875), 51 Ind. 484; Weir v. Marley (1889), 99 Mo. 484, 12 S. W. 798, 6 L. R. A. 672; Markwell v. Pereles (1897), 95 Wis. 406, 69 N. W. 798; Hibbette v. Bains (1900), 78 Miss. 695, 710, 29 South. 80, 51 L. R. A. 839; Miller v. Wallace (1886), 76 Ga. 479, 2 Am. St. 48; Bryan v. Bryan (1859), 34 Ala. 516; State v. Richardson (1860), 40 N. H. 272; Dunkin v. Seifert (1904), 123 Iowa 64, 98 W. W. 558; Giffin v. Gascoigne (1900), 60 N. J. Eq. 256, 47 Atl. 25; In re Wilson (1903) (N. J. Eq.), 55 Atl. 160.
Appellees’ claims to the custody of this child are not founded upon natural or legal rights, but only upon the superior advantages which it is assumed would be afforded the child by leaving it in their home, and under their control. The facts shown by the evidence are not sufficient to . require a court to exercise its discretionary power to intervene and interfere with parental authority. We are not unmindful of the tender affection and generous impulses
Courts must not be tempted to interfere with the natural order of family life, except in special cases of extreme urgency. In a case like this a court should not arrogate to itself the right to determine by its standards the welfare and benefit of the child, but should have a conscientious regard for the natural law from which we learn that the father, as a rule, knows far better what is good for his child than a court of justice can know. Paternal control of the family has been a fundamental principle in the history of mankind, and its free exercise, restricted only in the interest of humanity and good morals, is essential to the highest development of the race. What influence more likely to lead to despondency and self-destruction than the unnatural separation of a parent from his child, and what greater stimulus to worthy ambition and noble endeavor on the part of a father than the care and companionship of his motherless girl ?
It is needless to elaborate argument. The father has not relinquished nor forfeited his rights as a parent, and the faults found with his habits are not of such unusual and serious character as to disqualify him from discharging his parental duties, or to make him an unfit associate of his own child.
The court erred in awarding the custody of the child, Ruth A. Gilmore, to appellee Elora D. Kitson, and the judgment is reversed, with directions to vacate the same, and to enter judgment for the delivery of said child to appellant.
Jordan, J., dissents.