23 Del. 242 | Del. Super. Ct. | 1906
In "this habeas corpus proceeding, George N. Maris, the petitioner, asks for the custody and control of his minor child Ruth B. Maris, who he alleges is unlawfully held and restrained of her liberty by the respondent Margaret A. Capelle.
It seems from the evidence that in October, 1892, the petitioner married Margaret B. Capelle, the daughter of Alexander A. Capelle, deceased, and of his wife Margaret A. Capelle, the respondent. The petitioner and his wife lived together until December 1902; during which time two children were born to them, viz., Margaret A., born September 9, 1894, and Ruth B. (the subject of these proceedings), born July 26, 1902.
From these undisputed facts, it appears that Ruth, with the approval both of her father and mother, has been under the care of the respondent from December, 1902, up until the commencement of these proceedings, with the exception of nineteen days in June and July of 1905, when she was at home with her father, as above stated. During all that time she has been maintained, controlled and cared for by the respondent and her husband, Since the death of Ruth’s mother the respondent has stood in the place of a mother to the child. There seems to have sprung up between them a tender relation and strong affection. The respondent has become attached to the child by reason of natural ties and’affections and the peculiar conditions of the case. It appears that the respondent is amply able and willing to care for the maintenance, nurture and education of the child thus entrusted to her for nearly four years last past by both parents.
It appears, therefore, that the conditions above stated have grown out of the acts and agreement of the petitioner himself. The child, a girl of less than four years old, is of that tender age
Much stress has been laid upon the common law rule, that the father has the paramount right to the custody of his minor . children. While we recognize this as a general rule, it is subject to modification by the particular facts and circumstances of the case. While not alone conclusive, the interest of the child is an important factor in the determination of the question, whether the father should be given the control of the child.
Having this rule and its modification in view, after a careful consideration of the facts in this case, we have concluded that the relations heretofore established between the petitioner and the respondent with respect to the child should not be disturbed, and that the custody and control of Ruth B. Maris ought not to be taken from the respondent.
It is therefore ordered by the Court that the custody and control of said minor, Ruth B. Maris, shall remain in the respondent, Margaret A. Capelle; with the right, however, in the said George A. Maris and his daughter Margaret A., and his father, mother and sister, to visit the said minor at all seasonable times and places.