171 N.W. 212 | S.D. | 1919
This habeas corpus proceeding. was instituted by the appellant to obtain the possession of his then five year old daughter from the respondents, who are the maternal grandmother, aunt, and uncle of said child. Much testimony was submitted, and the court made findings and judgment denying the writ, from which judgment the father appeals.
Where it appears, as it does in this case, that the father'is a person of good character, and where no reason or circumstance is shown to exist why he should not have the custody and control of bis own child, we must hold, under the circumstances of this case, that his right is paramount to -that of the respondents. It is contended -by respondents that at the time of the death of the mother the appellant made a contract with the maternal grandmother whereby he gave his consent that she should care for said child. It does not appear that appellant unqualifiedly surrendered his custody and control by said contract. The provisions of the contract are somewhat vague in this respect. We are of the view that this contract should have but little weight, and should1 not be a controlling factor when considered in connection with all the surrounding circumstances. This was appellant’s first child. Ap^ pellant and his first wife were then quite young. When the wife and mother died, it was impossible for appellant to personally care for this child. No one was better qualified for giving such care than one of the grandmothers. It was possibly a moral duty resting on one or both the grandmothers to care for this 'child, and the-appellant no doubt assén-ted to the maternal grandmother having the care and custody of the child for some indefinite time and
The judgment and order appealed from are reversed, and the cause remanded, with directions to enter judgment in favor of appellant, the plaintiff, awarding him the custody, care, and control of said child.