33 Haw. 106 | Haw. | 1934
This is a habeas corpus proceeding. It was instituted by the father, the sole surviving parent of a child about two years and three months of age, for the purpose of obtaining the custody of the child which is now with its maternal grandparents, the respondents herein. The circuit judge decided that the petitioner and not the respondents was entitled to the custody and control of the child and entered judgment accordingly. The respondents appealed to this court.
Section 3033, R.L. 1925, as amended by Act 77, L. 1931, is as follows: "The father and mother of an unmarried minor child are jointly the natural guardians of its person and property. They shall have equal powers and duties with respect to it and neither shall have any right superior to that of the other concerning its custody or control or any other matter affecting it; provided, that, if either parent dies or abandons his or her family or is incapable for any reason to act as guardian, the guardianship devolves upon the other parent, and that, when the parents live apart, the court may award the guardianship to either of them, having special regard to the interests of the child."
It is apparent from the statute that the legislature intended to confer upon the surviving parent of a minor child the right to its custody and control. This right, however, is not absolute and incontestable. It must in all cases yield to the welfare and best interests of the child. (Robello v. Robello, ante p. 90; ReThompson Minor,
In the instant case the circuit judge, who heard the evidence and had the opportunity of observing the demeanor of both the petitioner and the respondents, found that the petitioner was a person of substantial character and that there was nothing in the evidence to indicate that the morals or well-being of the child would suffer under his guardianship. Under these circumstances his findings are entitled to great weight and should not without sufficient reason be disturbed. (In re Muranaka,
The decision and order appealed from are affirmed.