Johnson v. Terry

| Conn. | Aug 15, 1867

Butler, J.

The plaintiff, the father of a legitimate child, was in the quiet custody of the child, when assaulted by the defendant for the purpose of taking it away from him. The defendant had been in possession of the child, and the father had regained the possession by strategem, but that fact is entirely immaterial, if the possession of the father when obtained was lawful and exclusive. Lord Keñyon once held upon habeas corpus, as against the putative father of an illegitimate child, who had obtained possession of the child from the mother by force -and fraud, that he would put matters in the same situation again and restore the child to its mother. The force and fraud if exercised may be a proper subject for consideration on the hearing of a habeas corpus relative to the possession of a child, where the question is one of discretion, and where the further question, whether the father is the proper person to have the care of it, is legitimate. But in an action at law turning on the strict legal rights of the parties, the manner in which the possession was obtained can not be material, unless upon a question of damages, for it can affect no rights.

That the father is entitled to the custody and control of his minor children, even to the exclusion of the mother, is elementary law. The right arises necessarily from and is incident to his duty to maintain, protect and educate them. In order to justify the assault committed the defendant was bound to show a paramount right. That he utterly failed to do. It was claimed upon the argument that the facts show a relinquishment of the custody to the mother. It is not claimed that there was any agreement or contract between the father and the mother, by force of which the custody and control was transferred. All that the finding shows is that she left the home of the father and took with her the children. It is not found that she took them pursuant to any agreement or with the assent of the father. And if such contract were shown, it would not be a justification to the defendant, for such a contract would not be recognized as a lawful one. It is not in the power of a father to divest himself by contract, even with the mother, of the custody of his children. This was distinctly recognized as law in Torrington v. Norwich, 21 Conn. R., 543, and is also recognized in our legislation, (Gen. Statutes, p. 309, sec. 53,) which enables a parent under certain circumstances to transfer the right, and impliedly restrains him under all others. The citation from the opinion of J udge Peters, in Morse v. Welton, is inapplicable, for he was speaking, not of the right to the custody and control of a child, but of a right to his services.

It is further claimed that inasmuch as the father knew where the children were and permitted them to remain undisturbed for several years with the mother, he abandoned them and lost his legal right of control over them. But a right which the law gives in connection with the duty imposed, both founded on the highest principles of policy, and which for that reason cannot be aliened or transferred, for the same reason cannot be lost, dedicated or abandoned.

It is further claimed that the child was emancipated. It is ■unquestionably true that a father may emancipate a child as between them, so that the child will be at liberty to go where he pleases and enjoy the fruits of his own earnings. But there are no facts in this case which show any such emancipation. It is a naked- case of the removal of the children from the custody and society of the father, without cause shown, and without his assent. The child was not emancipated, nor was the mother clothed with any rights, and neither could confer any right or authority upon the defendant that would justify him in interfering by force to prevent the father from resuming and continuing the custody and control of the child whenever he thought proper to attempt it.

A new trial must be denied..

In this opinion the other judges concurred.