Whatever rights a guardian appointed in another state may havе to the custody of his minor ward living, with his consent, in this state, it is well settled that upоn
habeas corpus,
whether brought by a parent or a guardian, the controlling consideration is the present and prospective welfare of thе child. Even the parent has not an absolute right to its custody. “Ordinarily, a father is entitled to the custody of his minor children, and upon
habeas corpus
both courts оf law and equity have power to award it to him. The 'application, however, being addressed to the sound discretion of the court, such award will be withheld when it is made clearly to appear that by reason of unfitness in the father for the trust, or other causes, the рermanent interests of the child would be sacrificed by such change of custody; and in deciding upon this question the court will take into consideration the condition of the child with the persons from whose сustody it is sought to be taken; its relation to them; the present and prоspective provision for its support and welfare; the'length оf its residence there, and whether with the consent of the father, and the understanding, tacit, or otherwise, that it should be permanent; the strength of the ties that had been formed between them; .and, if the child has come to years of discretion, its wishes upon the subject.”
State
v.
Libbey,
44 N. H. 321 ;
State
v.
Richardson,
40 N. H. 272;
United States
v.
Green,
The ward in this case has been rightfully within this state sоme - seven years, with the consent of the relator; and' while herе her
status
and rights are to be determined by the laws of this state. If by comity the rights оf a foreign guardian may be recognized in our courts, they cannot be allowed to prevail in opposition to the
*73
legal аnd equitable rights of the ward while within this jurisdiction.
Woodworth
v.
Spring,
the superior court should detеrmine the question whether the child’s welfare will be best promoted by taking her from her relatives with whom she has lived for many years and for whom shе may have feelings of filial regard, and placing her in the custody of the relator, an officer appointed under the laws of Yеrrnont. While the official character of the relator may have a legitimate hearing upon the question of custody, other сonsiderations may be of controlling significance. The wishes of thе child, who is about thirteen years old, would seem to he entitled to сonsiderable weight. Church Hab. Corp., s. 447. The exclusion of the evidence offered by the defendant was erroneous.
The defendant’s mоtion to dismiss the petition was properly denied. From what has already been said, it is apparent that the relator may be the proper person to have the custody of the child, not beсause of his absolute right thereto, which, if it exists, is derived from the laws of another state and can only be recognized hero as a matter of comity
(Leonard
v.
Putnam,
51 N. H. 247;
Morgan
v. Potter,
The defendant’s first exception is overruled, and the second is sustained.
Order set aside.