80 Ind. 547 | Ind. | 1881
— Margaret A. Dickinson filed her petition in
A writ of habeas corpus was accordingly issued, to which McKenzie returned, that when the said Corintha was about four months old, the said Jacob Brandon, her father, abandoned her mother, the petitioner, and left her in very destitute circumstances; that in July, 1872, the petitioner requested him, the respondent, to take said Corintha, who was then in a delicate, unhealthy and neglected condition, and to care for, maintain, educate and bring her up until she arrived at the age of eighteen years; that he consented to take the said Corintha on the proposed terms, and immediately took her into his custody; that he had faithfully performed his part of the agreement, and that the said Corintha was then a bright, intelligent, healthy, contented and happy girl of about eleven years of age, very much attached to him and his family, and desirous of remaining, and continuing to live, with him; that he believed the happiness and best interests of the said Corintha would be greatly promoted by permitting her to remain with him.
Several errors are assigned upon the proceedings below, but the only question discussed by counsel is the alleged insufficiency of the evidence to'sustain the decision of the court, awarding the custody of the child to the petitioner.
The petitioner, after testifying to the substantial allegations contained in her petition, stated that, after being divorced from Jacob Brandon, she intermarried with a man by the name of Dickinson, who had since died, and that, consequently, she was a widow for the second time; that she was then well employed in the city of Chicago, in the State of Illinois, and receiving wages sufficient to enable her to make her and her child comfortable, and to also educate the child; and, as to' her employment and mode of living, she was corroborated by other evidence.
On the part of the appellant, it was substantially shown by admissions in open court, and otherwise, that he had, up to that time, supported, maintained and provided for the child in every way suitable to her condition in life, and was still not only willing, but anxious, to retain the custody of and to provide for her in the future, and that the child preferred to remain with him.
There was, however, no evidence as to the. pecuniary condition of the appellant. Neither was there anything tending to show the relative positions of the parties in a social point of view. Nor was there any evidence from which it might have been inferred that the petitioner was either mentally, morally or physically unfit to take charge of the child. There was evidence tending to prove that, while the petitioner had the care and custody of the child in its early infancy, she had treated it much ofthe time with neglect, and sometí mes harshly; but that was denied by the petitioner, and, as to the evidence in that respect, it may be said to have been conflicting.
To take a child of eleven years of age, who has no recollection of actual parental care, and against its will, from its foster-parents, who have always treated it kindly and well, who are attached to it and anxious to retain it, involves the exercise of a power which ought to be used with scrupulous care, and only in accordance with such well recognized rules of decision as are applicable to such a case.
The statute concerning the custody of the persons and estates of minors, in force when this cause was heard, provides that the father of a minor child, if there be a father, or, if there be no father, then the mother, if suitable persons respectively, shall have the custody of the person, and control of the education, of such minor child, even to the exclusion of its guardian. 2 R. S. 1876, p. 589, section 6. The superior claim of parents to the custody and control of their minor children, thus recognized, has equal, if not greater, application as against all other persons, other than guardians.
The petitioner having shown herself entitled to the custody of the child in controversy as against the father, the next enquiry was whether she was such person as might properly be permitted to resume the custody and control of her child. In connection with and as bearing upon that question, it was proper for the court to enquire what was apparently for the best interests and general welfare of the child, having reference to the relative social positions of all the parties before the court, and to all the circumstances by which the child was surrounded. This enquiry was one to which the court might have given a wide range, and the extent of the enquiry, together with the proper inferences to be drawn from it, rested very much in the discretion of the court. The State, ex rel. Sharpe, v. Banks, 25 Ind. 495; Garner v. Gordon, 41 Ind. 92; Copeland v. State, ex rel. Kayser, 60 Ind. 394.
The court below had all the parties and most of the wit-
We are, therefore, unable to say that the court below erred in awarding the custody of the child to the petitioner.
The judgment is affirmed, with costs.