69 Conn. 291 | Conn. | 1897
Two errors are insisted on: (1) That the judge erred in holding that the question of the interest of the minor could affect the right of the plaintiff to the custody of his ward. (2) That the judge erred in overruling the claims of the plaintiff that the appointment of the defendant as guardian was void, for the reason that the Court of Probate in the district of Thompson had no jurisdiction to make the appointment.
Most of the argument which is made in behalf of the plaintiff seems to us to be misapplied. The contention here is not between the father on the one hand and a stranger as guardian on the other, but between two guardians; one appointed by a court at the place where the minor has had his actual dwelling-place for six or eight years, and the other by a court at the place where it is said the technical domicil of the minor’s father is. This writ, if granted, would not put the minor into the care and custody of his father, but
But were it otherwise, and the case was between the father and a guardian, we think the court did not err in considering the interest of the minor in determining into whose hands he should be placed. “ While it is the strict legal right of the parents and those standing in loco parentis to have the custody of their infant children as against strangers, a court will not, on habeas corpus, regard this right as controlling, when to do so would imperil the personal safety, the morals, health or happiness of the child in controversy. The right of the father or mother to the custody of their minor children is not an absolute right to be accorded to them under all circumstances, for it may be denied to either of them if it appears to the court that the parent, otherwise entitled to the right, ‘ is unfit for the trust.’ And in contests between parents and third persons as to the custody by such parents, the opinion is now almost universal that neither of the parties has any right that can be allowed to militate against the welfare of the infant. The paramount consideration is, what is really demanded by its best interests. And the rule is ordinarily the same in contentions between parents for the possession of children. .The court is not bound to award the custody
In the matter of Jeremiah O'Neal, 3 Amer. Law Review, 578, 579, Judge Hoab gave this opinion: “Suppose by a pure misfortune, as insanity, or being cast away, ... a father has left his child destitute and dependent on charity; does this give the child the right to form such new relations as to take from the father the right to the custody of the child? Upon the best reflection, I am satisfied that it does. When the father, by misfortune, is compelled to leave the child utterly helpless, the child ought to be considered as emancipated by the father. If by misfortune, the child has made new relations in life, so deep and strong as to change its whole nature and character, the father has no right to reclaim it. I am satisfied that this is a sound proposition. The child is not the father’s property. It is a human being, and has rights of its own. The father has a right to the custody of his child, because, from general experience, the natural and trained' affections of the child attach to the father and those of the father to the child. If the father has left the child at an age too early for it to remember him, and it is placed in circumstances so that it must perish unless cared for, and other persons have expended money and become attached to the child, and the child has formed such associations as cannot be severed without injury to it, then the father has no legal right to sunder those ties. It is within the judicial duty of the court to determine that the assent of the father has been given to the arrangement, which cannot be terminated without injury to the child. This principle would apply under the same circumstances if the father became insane. A human being cannot be treated like a piece of property.”
In State ex rel. Lynch v. Bratton, 15 Amer. Law Register, 359, the court uses this language: “The father’s right (to the custody of his infant child) is not absolute or unqualified. He may relinquish or forfeit it by contract, by his bad con
On the hearing of a habeas corpus relative to the possession of a child, the question is one of discretion, and the further question whether the father is the proper person to have the care of it, is legitimate. Johnson v. Terry, 34 Conn. 259, 262; Chapsky v. Wood, 26 Kan. 650; Mercein v. The People, 25 Wend. 64; Verser v. Ford, 37 Ark. 27; 9 Amer. & Eng. Ency. of Law, 243; Prime v. Foote, 63 N. H. 52; In re Goldsworthy, L. R. 2 Q. B. Div. 75.
The Court of Probate in Thompson has jurisdiction to appoint a guardian to Clarence Ward. His actual, stated residence was in that district. Sections 458 and 459 of the General Statutes use the word “ resides ” in this sense, rather than in the sense of strict, technical domicil. Denslow v. Gunn, 67 Conn. 361. In other sections of our statutes generally, the word “ reside ” is used in a sense which includes all who are the actual, stated dwellers in any given place, even though they may have a technical domicil elsewhere. Yale v. West Middle School District, 59 Conn. 489; Conn. Hospital for Insane, v. Brookfield, 69 id. 1.
There is no error.
In this opinion the other judges concurred.