154 N.W. 277 | N.D. | 1915
(after stating the facts as above). Although the proceedings are, in their form, proceedings under the writ of habeas corpus, the personal liberty of the child is only technically involved, and the whole question in controversy is the right to his custody and possession. In such' a case the court sits more as a court of equity than .as a court of law. Its controlling consideration must be the interests of the child, and its paramount duty is to leave that child where those interests will be the best subserved. Knapp v. Tolan, 26 N. D. 23, 49 L.R.A.(N.S.) 83, 142 N. W. 915; Hochheimer, Custody of Infants, 96; People ex rel. Humex v. Phelps, 58 Misc. 625, 109 N. Y. Supp. 943; Kelsey v. Green, 69 Conn. 291, 38 L.R.A. 471, 37 Atl.
It was given to the little wanderer to himself state the law of his case, and to furnish the irresistible argument to which no court ever has or ever should turn a deaf ear. Four or five months after he had first come to the home of the Clarks, and as he was sitting one Sunday morning between them on a davenport, he turned to his foster-parents and said: “Papa, mamma, God gives every little folk a papa, and a mamma and a home, and you are the papa and the mamma that God has given me, and this is my home, and I am going to stay here.”1 After wandering about for sis years, after being taken from place to place, and after being constantly and purposely removed from those-who had begun to become attached to him as soon as that attachment became apparent; after being deprived of that which is dearer to every child, and in fact to every human being, than food or drink or raiment or wealth or power, and that is simple and genuine love, — the little wanderer had at last found a haven of rest. He had not merely found the physical comforts and opportunities which wealth furnishes, but. he had found love. He had found not merely a mother, but a father. God does intend to give “to every little folk a papa and a mamma,” and it is the dread of the lack of the former if the custody of the child is given to the petitioners, that largely controls our decision -in this case. In arriving at our conclusions we do not consider the relative wealth of the respondents and of the petitioners and the material-advantages which money can furnish. We agree thoroughly with counsel for the petitioners that this question of wealth should not be-controlling.
We are fully aware of the dominating interests of natural parents. We realize that often the wealth of parents has been a stumbling block to the progress of their children, rather than an advantage. We agree with the supreme court of Georgia that poverty alone furnishes no reason to deprive a parent of his offspring, and that the greatest charácters in history have been those who have been bom in the manger and in the log cabin, rather than in the palace. See Cormack v. Marshall, 211 Ill. 519, 67 L.R.A. 787, 71 N. E. 1077, 1 Ann. Cas. 256; Re Carter, 77 Kan. 765, 93 Pac. 584; Sloan v. Jones, 130 Ga. 836, 62 S. E. 21; Monk v. McDaniel, 116 Ga. 108, 42 S. E. 360; Lamar v. Harris, 117
We believe, however, that a child is entitled to both a father and a mother, and that the love and guidance and support of the one is as necessary to him as is that of the other. We believe that Mrs. Sidle loves the child. We believe that although through the long years of separation that love was not strong enough to induce her to absolutely insist upon the presence of the boy, she nevertheless constantly yearned for him. We might be willing to pass over the failure of this insistence, and justify it on the ground that she was hoping against hope that sometime the boy might be brought to her without any disclosures as to his past. But we still have the man Sidle. Without his sincere affection and co-operation, and without his love, a change from the custody of the Clarks to that of the Sidles must be ruinous in its consequences. In a home of love and sympathy and interest, the boy might soon forget the advantages which the resources and affection of the Clarks have been able to afford him. He might, like many another child, grow into a finer and a stronger man were he deprived of these material advantages. But he must have love and guidance, and that ungrudgingly bestowed. At first he would be heartbroken at the change and dissatisfied with his new surroundings. He must have those who will bear with him, who will love him and who will guide him. We think that he might count upon the loyalty of his mother, but we dare not trust the father, and the wife during eight years has been dominated by that father. He tried to destroy the child before he was born. He sent him out a wanderer when only two weeks old, and kept him as such for nearly eight years. Through his agent, Miss Wendell, he purposely deprived him of the companionship even of strangers when those strangers began to show any signs of genuine affection for him. He has never really adequately provided for his wants, even those which were physical. Even now he gives no evidence of affection, — merely a willingness 4hat his wife shall have the boy, and he only brought the present suit because she insisted upon it and because the'time had arrived when silence was longer impossible. Can we send the child to such a home as this ? We know that in the home of the respondents he will be properly trained and educated. We know that in that home he is radiantly happy. We know that for the first
In refusing to interfere with the present custody of the infant, and in quashing the writ of habeas corpus, we are following not merely the dictates of our own consciences and of our own judgments, but the almost unanimous decisions of the courts of the country which have been rendered under similar circumstances. See Re Burdick, 91 Wis. 639, 40 L.R.A.(N.S.) 887, 136 N. W. 988; Armstrong v. Stone, 9 Gratt. 102; Church, Habeas Corpus, §§ 440-442; Green v. Campbell, 35 W. Va. 698, 29 Am. St. Rep. 843, 14 S. E. 212; Sheers v. Stein, 75 Wis. 44, 5 L.R.A. 781, 43 N. W. 728, 3 Mod. Am. Law, 346.
An examination of the child has been made, and his desire is certainly to stay with the Clarks, and in a case such as this the wishes of the child may well be considered. People ex rel. Humex v. Phelps, 58 Misc. 625, 109 N. Y. Supp. 943; Richards v. Collins, 45 N. J. Eq. 283, 14 Am. St. Rep. 726, 17 Atl. 831; People ex rel. Wehle v. Weissenbach, 60 N. Y. 385; Com. v. Hammond, 10 Pick. 274; Merritt v. Swimley, 82 Va. 433, 3 Am. St. Rep. 115; Re Gould, 174 Mich. 663, 140 N. W. 1013; Neville v. Reed, 134 Ala. 317, 92 Am. St. Rep. 35, 32 So. 659.
We must also remember that, after all, the child is but the future citizen, and that paramount to the interests of any of the parties to the litigation, and even of the parents themselves, are the interests of the parent state. McKercher v. Green, 13 Colo. App. 270, 58 Pac. 406.
The writ of habeas corpus will be quashed. Each party will pay his own costs.
