76 Mo. 565 | Mo. | 1882
Lead Opinion
This is a proceeding, by writ of habeas corpus, at the instance of Edward L. Scarritt, to obtain the custody of the person of his child, Berenice S. Scarritt, alleged to be unlawfully withheld by the respondents, James 0. Swinney and Maria C. Swinney, his wife.
The application states substantially that the petitioner., on July-8th, 1874, married respondents’ daughter, and that there was born of this marriage, on May 20th, 1875, one child—the infant Berenice, the subject of this controversy that her mother died August 28th, 1876, and that after her death petitioner removed to Kansas City, his former home, to practice law, but upon the urgent and repeated requests of the respondents, he was persuaded and did permit his daughter Berenice to remain with them, where she has been ever since, and now is; that on April 16th, 1878, the petitioner was duly appointed the guardian of the person and curator of the estate of his daughter, Berenice, and is still such guardian and curator; that on March 16th, 1880, he was married to Miss Maggie M. Morris, of Kansas City, and he owns and supports a comfortable home in that place, and in his profession as an attorney at law he is earning an income of at least $2,500 per year, and has, in addition to his home, other property sufficient to support and maintain
The material parts of the return of respondents states substantially that they hold the child “by authority of the dying mother of said infant, and upon the further authority of a written request and contract made by the complainant, E. L. Scarritt, that the respondent, said Maria C. Swinney, the grandmother of said infant, should have the possession of the person of said infant until she should become at least ten years of age,” that they further have the custody of said infant upon the subsequent repeated verbal confirmations of said written contract; that they have had the entire expense of said infant since its birth, and that, “ relying upon the contract aforesaid, and expecting to retain and educate said child until she became at least ten years old, they bought a home at Glasgow, in Howard county, at the expense of $6,000, and located there; that if they had not had charge of said child, or had known that they were to give her up, they would not have bought said place and located therethat they are capable and willing “ to discharge the duties of a mother and father to said infant until the time fixed by said contract, to-wit: when she arrives at the age of ten years, and will then deliver her over to the custody of her father.” The return further states that at no time prior to the 6th of February, 1881, did they refuse to permit said infant to visit its father; but at all times prior thereto permitted her to do so, frequently and without restraint; .that, at the date last aforesaid, the petitioner demanded the possession of said child, and fearing that he might avail himself of
To this return is appended the letter of the 21st of September, 1876, from the father of the infant to its grandmother ; and which is set up in said return, as the contract in question, by authority of which they claim the right to hold and detain said infant. That letter reads as follows:
Spruce Mont., Nevada, 1
September 21, 1876. j
My Dear Mother: For the love I bear you as the mother of my precious, beloved wife; for the love I bear you for your own Christian virtues for the sake of the tender ties which I know bind you to Anne’s and my baby, I am constrained to give the possession of her person unto you, until at least she passes her first decade in life. O ! mamma, you can never know what a terrible struggle it has been for me to bring myself to this conclusion. It is only my great love for you, my solicitude for my darling’s welfare and religious training, that has overridden my selfishness, and brought me to the knowledge of what is best for my child. Make her consecration to God your first duty, my dear mother, and teach her, that, no matter what her father may be or do, his will, his' heart’s desire is to know that her life, her heart, her all is consecrated to God and to His holy service. Hold up the pure life and conduct of her precious mother ever before her eyes as an example for her to follow-; but, above this, teach her that her moth er’s constant thought was to follow the example of Christ, And last, O, do not let her forget her father. Tell her often that she is the ballast which keeps him steady in his course of duty ; that it is for her that he pursues his life
Your affectionate son,
Ed. L. Scarritt.
The material parts of the reply deny generally the new matter set up in the return, and then proceeds as follows to-wit:
Your petitioner further states it is not true that respondents have been at the entire expense of the care and support of the said infant Berenice, since her birth; but that until the death of her mother, the same was borne wholly and entirely by your petitioner; that since the death of the mother of said infant Berenice, your petitioner has paid out considerable sums for medical bills and bills for clothing, and has been at all times ready and willing to pay any other reasonable charges created or incurred in her care
Finally, however, respondent, J. 0. Swirmey, urged upon your petitioner the necessity of doing something to
As shown by the pleadings, this is a contest between the father of the infant in question, on the one side, and its grand-parents, on its mother’s side, on the other.
There is but little, if any, dispute between the' parties as to the law generally applicable to such contests. It is conceded that the father is the natural guardian of his child, and as such entitled to the custody of its person. It is also conceded that in contests of this sort it is the duty of the court to award the person of the infant to the custody of the father, unless it is made manifest to the court that the father, for some reason, is unfit or incompetent to take charge of it; or unless the welfare of the child itself, for some special or extraordinary reason, demands a different disposition of it, at the hands of the court. Such appears to be the language and current of authorities, to which we have been cited, or to which we have had access. Indeed, this is the admitted law. About this there is no controversy. It is also conceded that the father, by the common law, cannot irrevocably divest himself, even by contract with the mother, or any other person, of the custody of his children. It is held, both in England and in
This author, in his admirable work, when treating of this subject, uses this language: “ The general doctrine appears to us, on the whole, to be this -..that public policy is against the permanent transfer of the natural rights of a parent, and that such contracts are not to be specifically enforced, unless in the admitted exception of master and apprentice, to constitute which relation requires, both in England and America, certain formalities, and excepting in some parts of the United States, where the principles of legal adoption are part of the public policy. American courts hold fast nevertheless, to the true interest and welfare of the child.” p. 345. The same author, on page 345, uses this language: “It is held in England that an agreement by which the father surrenders the custody of his child is not binding; and that he is at liberty to revoke his consent afterwards, and obtain the child by writ of habeas corpus.” On page 343 the same author adds : “ If the father, after making an assignment of the services or society of his minor child, has re-taken the child into his own keeping, the assignee’s only remedy, on this behalf, (if any he has,) is by action on the contract.” . * *
“Nor can the father, under the common law, divest himself even by contract with the mother, of the custody of his children, though he allows them to remain with her for several years.”
To the same effect also, is Hurd on Habeas Corpus, who states the matter thus, at page 461: “In controversies between parents for the custody of their, legitimate children, the right of the father is held to be paramount to
As to any mere article of property, either personal or real, the law permits a man to dispose of it, by gift or contract, as he chooses. Not so of his children. The father owes a duty to nurture, support, educate and protect his child, and the child has the right to call on him for the discharge of this duty. These obligations and rights are imposed and conferred by the laws of nature; and public policy, for the good of society, will not permit or allow the father to irrevocably divest himself of or to abandon them at his mere will or pleasure. Such, generally, is the admitted law of the case.
But it is contended for respondents that a father may place his child in the custody of others and permit it to remain, or contract for its temporary care and custody, under circumstances which will preclude him from disrupting these new relations thus arising, unless the interest of the child demands it. If. that were so, let us see if it has been done in this ease. Let us also see, if we can, what, if anything, there is in the facts of this case, which makes it our duty to depart from the acknowledged general rule, or disrupt one of the strongest and holiest ties that binds the race and preserves society.
In the first place it may be observed that the child,
Its grand-parents, whom the evidence shows to be noble specimens of our race, distinguished alike for amiability, culture and deeds of labor and love, and endowed with all the wealth of parental affection for this child, which it is possible for grand-parents to cherish, are, it must not be overlooked, fast approaching, if not already in the decline of life, with health, never robust, much shattered and broken by unutterable sorrow for an only daughter, the mother of the child in question, and can scarcely hope to survive through all the years of its minority. It appears also that they have at this time, only the remnant of a once princely fortune, much of which is held by a precarious tenure, and it can hardly be expected that they can in the future, at their time of life, add much, if anything, to their present financial condition.
On the other hand, it cannot be ignored that the father and child are bound together, by ties that in their nature are nearer and stronger than it. is possible for any relative in a remoter degree to feel or experience. The evidence shows him to be at the threshold of an early and vigorous manhood, with good habits and morals, an honorable profession, with a lucrative and growing practice. Iirs finan-. cial condition, also, is shown to be ample and prosperous, his name without blemish, his social position and standing all that could be desired, and his home and family relations at once pleasant, happy and cultured. It is thus we find
Under such circumstances can there be any doubt, as to what is for the best and permanent interest of this young-girl ?—Just at that period of life when her affections, intellect and character are to receive their impress for good or evil. ' Who is better qualified, or can have a greater interest than the father, to see that the impress is what it should be ? Who also can fail to see that the filial and paternal affections of these parties are not only involved in this controversy but most likely staked upon its result.
It cannot be overlooked, that prior to this contest, the affections of the father and child, as well as those of his. family, and that of respondents were all that they should be. It is noticeable, also, and cannot be overlooked, that an estrangement to some extent has already taken place-between the father and the respondents. Under such circumstances it is of the first importance to protect as far as. possible the welfare and happiness of this impressible child from the probable effects of that estrangement. It may not be possible to extricate all these parties from this contest, without disappointment and suffering somewhere; but the paramount consideration is, what is best for the welfare- and happiness of the child itself. It may be no easy task, at all times to answer correctly such delicate and difficult questions, but in this case, if the instincts of filial and paternal affection are of any value, or if the voice of nature, which declares that the father is the natural guardian of his child, is worth anything, they furnish the only proper solution of this question. These ties and this voice should not be broken or hushed, if it can be avoided without detriment to what must be regarded as the best interest of the-child itself. The evidence in the cause also speaks the same language.
This being so, it only remains to consider the validity, force and effect, if any, to be given to the alleged contract, as evidenced by said letter of the 21st of September, 1876,
From the testimony it is impossible not to see that this temporary disposition of the child was made at the special instance and request, and upon the urgent solicitation and importunity of the respondents, and for their accommodation and benefit, and reluctantly and unwillingly acceded to by the father for the best and most commendable motive: to save, if possible, the life of the grandmother from pending danger, as he was impressed and made to believe by her over-anxious and alarmed husband. The burden of the custody of this infant, if it can be considered a burden, was not thrust by an unfeelingfather upon the care of an unwilling and reluctant grandmother, but on the contrary, the same was reluctantly and unwillingly conceded to the urgent importunities, and to gratify an over-fond and affectionate grandmother for the only child of her only daughter, and has so remained ever since. Such a gift or contract, if such it can be called, so made, can in conscience, ill afford to be made the basis of an absolute and irrevocable surrender, even for a limited time, (beyond the immediate and pressing necessity which alone dictated it,) unless the best interest"and welfare of the child
Besides that, the letter in question, on its face proves, if proof was wanting, the great and absorbing love the father bore the child; the anxious solicitude he felt that the child might not forget its father, and the terrible struggle it cost him,-to consent to her temporary detention by the grandmother. No one can read that touching letter without being struck with the fact, expressly stated therein, that it was for the love he bore the mother of his wife, and for the sake of the tender ties that bound her to his child, that he was constrained to consent to this temporary gift to the grandmother. It is plain to see, that this love and those ties, together with his solicitude for her welfare and religious training, constitute the sole consideration for the gift, and it is difficult, if not impossible, to see how such a letter, written for such a purpose, and under such circumstances, can be construed into a contract, within the meaning of that term, or how it can be held to have a valid consideration, as that term is usually defined, to give it ■obligatory force. At most it seems to be a voluntary gift, on the part of the father, to gratify the love and accommodate the wishes of the grandmother. There is no indication, in the letter itself, or in the circumstances under which it was written, that the parties thereto ever dreamed they were making a contract. And if it should ,be held to be a contract, or to have a consideration, it would still be void, as against public policy, as we have before seen.
Had this contest arisen three or four years ago, during the period of helpless infancy; or had it been deferred until the child grew to be some twelve or thirteen years old, and the affections of long association and tender treatment had been allowed to supplant the ties of blood as in the case of Pool v. Gott, 14 Law Reporter 269, and other like cases, from Kansas and elsewhere, cited by respondents, (and which in important particulars are totally unlike the ease at bar,) a different question would have arisen.
Dissenting Opinion
Dissenting.—There can be no question, on the evidence, that the petitioner voluntarily surrendered the child to the care and custody of respondents, for a definite period of time, which has not yet elapsed. There is no foundation in the testimony for the charge that he was unduly influenced-by Mr. Swinney to make the disposition of the child which is evidenced by his letter to Mrs.. Swinney. No false representations were made by Mr. Swinney, and it is not difficult to conceive that a lady in Mrs. Swinney’s delicate health, attached as she was to the child, the sole offspring of her own only daughter, should’ be so seriously disturbed by the apprehension that it would be taken from her care and custody, as to impede her recovery from the ailment with which she was afflicted. To this effect were Mrs. Swinney’s statements, and considerations like these are calculated to touch a father’s heart, and prompt him to yield to the. importunities of the grandparents of the child; especially when, as in this instance, the grand-parents are in every respect persons to whom its rearing may properly and safely be confided. It makes no difference that Mr. Scarritt reluctantly consented to the' arrangement, if he then had capacity to give his consent. Having that capacity, the agreement is as binding upon him, as if he, instead of Mr. and Mrs Swinney, had urged its consummation. ■
Ordinarily the father is entitled to the custody of his minor children. There are no controverted questions of.
That a father, by or without a contract, may dispose
It is clear from the testimony that the attachment between the grand-parents and the child is as intense as that which exists between a parent and child; and having, by his own conduct and agreement, encouraged its development, Mr. Scarritt should not now be permitted to sunder the relations between them. It was a regard for the well-being of the child, no less than a consideration of the grandmother’s affection and anxiety for her, which prompted Mr. Scarritt to surrender Berenice to her grand-parents,' and having deliberately established relations between them, which would naturally result in the mutual affection which exists between them, it would be cruel to both to deprive them of the comfort and happiness they find in each other’s society.
When the little girl, then a babe, was confided to the care of her grand-parents, Mr. Scarritt was a widower, living at a boarding-house in Kansas City; or, at least, shortly after he became such boarder. His own mother was dead, having left a family of small children who were under the care of a step-mother; and at no place on earth could he have found for his child, a more suitable home than with her grand-parents. I do not share the prejudice which many entertain against step-mothers and mothers-in-law. No class of people have been more unmercifully and unjustly satirized, and I intend no reflection upon the step-mother of petitioner, when I say that it was barely possible that this little child would be as well cared for at the home of Mr. Scarritt’s father, as at that of Mr. Swinney. It was certain that at the latter she would receive all the care and affection which the warm hearts of refined,
I am aware that the interest and welfare of the child is the paramount consideration with courts, in the determination of these eases, but the interests, feelings and welfare of the person to whom the child has been confided are not entirely disregarded. Chapsky v. Wood, 26 Kas. 650 In the opinion of the court, English authorities are cited of which Lord C. J. Denman said : that the state of the law was such “as to render it odious in the eyes of the country,” and Chancellor Walworth remarked with reference to them that the English courts “appeared to have gone back to the principles of a semi-barbarous age.” 25 Wend. 93, 104, 105. The doctrines announced in those cases and the early American cases based on them, have been generally repudiated by the American courts, which, in the administration of this branch of the law, have advanced to a recognition of the sentiments of humanity.
In the State v. Libbey, 44 N. H. 321, it was held to be within the sound discretion of the court, whether the custody of the child will be given to the father, and that in determining the question, the court will consider not only the fitness of the father for the trust, but “ the condition of the child with the person from whose custody it is sought
That paragraph is a clear enunciation of the law on the subject, and commends itself to one’s sense of justice. To the same effect is the Case of Bort, 25 Kas., supra, and in fact, every well considered American case recognizes this doctrine.
The welfare of the child is the chief, and every other consideration must yield to it, but when it is established by the evidence, that the welfare of the child does not require a change in its custody, although it may appear that he child would be as well cared and provided for by the ather, the feelings, affection and interest of the custodian • |'e to be considered in determining whether there should ■tí a change in the custody. Can there be any doubt, upon i tie evidence in this case, that the child is well cared for the grand-parents ? That upon her health, morals and intellect, the highest care and culture have been and will cpntinue to be bestowed? Can it be said that the child vfould be in better circumstances, under the care and management of a step-mother to whom she is comparatively a stranger, who has had no experience in rearing children, than with her grand-parents, who have transferred to hef all the love they bore their own deceased daughter, the mother of the child ? 1 do not question the ability or willingness of Mr. and Mrs. Scarritt to do all for the child that is to be expected of affectionate parents, whose social and financial position enables them to do all that could be desired for her, but am satisfied from the evidence, that the child will never be elsewhere as happy, as at her present home, or receive the same constant care and warm
And, in addition to-all this, there is the testimony of the physicians who have for years attended the child in her sickness, that removing her from her present home and surroundings to the City of Kansas, would probably endanger her life. This was the testimony of Drs. Vaughn and Collins, the former of whom is known throughout the State as an eminent surgeon and physician.
For the foregoing reasons I cannot concur with my associates in awarding to the petitioner the custody of the child.