26 Haw. 433 | Haw. | 1922
Lead Opinion
OPINION OF THE COURT BY
This was an application for a writ of habeas corpus by Angelica Nunes Atanazio of Honolulu, a widow, in the name of her minor daughter, Constantina Nunes Atana-zio, aged eight, against Christian Keiek and Mary Keiek, his wife, of Kilauea, Kauai, to obtain the custody of the child. The case having been heard the trial judge rendered a decree remanding the child to the care, custody and control of the respondents “until she shall arrive at the age when she may properly select her own guardián,” and dismissed the writ, from which an appeal was perfected to this court.
There is not a scintilla of evidence in the entire record reflecting in the slightest degree upon the character of the mother. While it is true that for most of the time she
It is claimed' by the respondents, and was found by the two judges of the juvenile court, that it was for the best interest of the child to remain in the custody of the respondents, but even were that condition so at the time of the two hearings before those judges it cannot be said to exist at the present time.
The parents are the legal, proper and sole custodians of their children until by some act of their own they have forfeited that right; and from the evidence in this case it would be in contravention of the statute, and repugnant to the dictates of humanity, to deprive this mother of her infant daughter.
Stress is laid upon the fact that she was appointed by the circuit court guardian of this and her other minor children. While this is a circumstance to be considered in refutation of the theory that she had abandoned the child, what her rights under this appointment were is immaterial to the issue in this case and need not be considered.
A large majority of the cases sanctioning the placing of a child in other custody than that of the mother, upon the ground that the child would be benefited thereby, rest upon the unfitness of the mother to exercise maternal control over the child on account of her immoral practices
Stress is laid upon the fact that at the hearing in this case before the circuit judge the little girl expressed a desire to remain with the respondents but this does not appeal to us as a child of her tender years could scarcely be expected to exercise a rational choice.
“We cannot for a moment agree that a boy of thirteen can be allowed, at pleasure, to abandon his filial duties and select elsewhere a home more agreeable either to his desires or his worldly 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 in life when the law dedicates both their persons and their services to parental control.” Moore v. Christian, 56 Miss. 408.
“Nor will the attachment of the child to its foster parents, by reason of kind treatment and association, be given serious consideration, unless the effort to reclaim it has been delayed until the child has reached the age when the presumption may be indulged that it is capable of forming and has formed a lasting affection for those to whom it is indebted for reciprocal love and maintenance, and that the sundering of such ties will subject to serious hazard its interest and happiness.” Parker v. Wiggins, 86 S. W. 788.
The appeal should be sustained and it is so ordered and the decree appealed from is reversed and the cause remanded with instructions to enter an order therein awarding the child to the custody of the mother, Angelica Nunes Atanazio, the petitioner.
Concurrence Opinion
CONCURRING OPINION OP
I concur in the foregoing result. It does not appear that the petitioner ever relinquished or forfeited her right