Jensen v. Jensen

168 Wis. 502 | Wis. | 1919

Winslow, C. J.

The paramount right of the father to the custody of his children, which was recognized by the common law and by the words of our statute (secs. 3964, 3965, Stats.), has become the merest prima facie right, which yields readily when it is shown not to be best for the child. Welch v. Welch, 33 Wis. 534; Sheers v. Stein, 75 Wis. 44, 43 N. W. 728. The welfare of the child is now the controlling consideration; and with regard tO' children of tender years, especially girls, preference will ordinarily be given to the mother, other things being equal and she not being unfit. The reasons for this last rule are very obvious and need not be elaborated here. Umlauf v. Umlauf, 128 Ill. 378, 21 N. E. 600; Brandon v. Brandon, 14 Kan. 342; Smith v. Smith, 15 Wash. 237, 46 Pac. 234.

In the present case the evidence affirmatively shows that the child is furnished a good home by her mother and is well taken care of. Really the only substantial argument which can be advanced in support of the order changing the custody is that the mother has conclusively shown moral unfitness by reason of her attempted marriage to and cohabitation with Jepeway in Michigan three months after the divorce decree was pronounced, in violation of our divorce statute, which provides that the decree shall not be effective, so far as the status of the parties is concerned, until the expiration of one year. Secs. 2330, 2374, Stats.

This act was of course a violation of law, but it does not necessarily demonstrate depravity of heart or moral unfitness to bring up a child. While this court has held that the Wisconsin divorce statute prohibits Wisconsin citizens from evading its provisions by making a trip to another state and there contracting another marriage during the year (Lanham v. Lanham, 136 Wis. 360, 117 N. W. 787), the argument that statutes of this nature can have no extraterritorial effect was very strongly made in that case and has been successfully made in some jurisdictions. Dudley v. Dudley, 151 Iowa, 142, 130 N. W. 785, and cases cited in the opinion in that case. Both of the participants in the transaction here in question claim that they supposed they could lawfully be married.

There is no evidence that the plaintiff was specifically advised that she might not marry within the year in another state or had any knowledge of the sweeping construction which this court had placed upon the law. If, as seems probably the fact, she supposed that the divorce was complete and that she was simply forbidden to remarry for a year, her act in remarrying does not place her in the same class as the wilful adulteress, not does it necessarily stamp her as an unfit person to bring up her child. The moral quality of many acts depends upon the condition of the mind and the information possessed by the actor, and this is such an act.

We do not think that, in the absence of any other claim of unfitness and in the face of proof showing that the child is being well taken care of, a girl of tender years should have been taken from its mother’s care; especially when it appeared that the father would probably not be able to give the child personal attention, but expected to leave its care to grandparents.

'By the Court. — Order reversed, with costs, and action remanded with directions to dismiss the petition.