139 Me. 118 | Me. | 1942
September 25, 1941, Francis O. Merchant filed a petition for a writ of habeas corpus to recover custody of his minor daughter, Nancy Ann Merchant, aged four years. The writ issued and the child was produced in court. After a hearing the sitting justice dismissed the writ and ordered the child restored to the custody of the respondent. The case is before us on exceptions to this ruling.
The petitioner was the husband of Mary Fuella Bussell, who was the daughter of the respondent. The marriage took place March 6, 1936, and the child was born March 3, 1937. The mother died a few hours after the birth. Shortly after the funeral there was a conference at the home in Saco of Dr. Clarence E. Thompson, a brother-in-law of the respondent. There were present Mrs. Bussell, her two daughters, and the petitioner. At the hearing Mrs. Bussell testified that at this family
A writ of habeas corpus is ordinarily a proper remedy for a parent who claims to have been unlawfully deprived of the custody of a child. Generally speaking, the object of a writ of habeas corpus is to release one from an illegal restraint. In the case of an adult, who may go his own way, no more is required. An infant of tender years must, however, be in the custody of someone, and to do no more- than order a release would as a rule be a futility. In such cases courts have accordingly gone farther and have entered orders providing for custody. Rex v. Delaval, 3 Burr., 1434; Richards v. Collins, 45 N. J. Eq., 283, 17 A., 831, 14 Am. St. Rep., 726; In the matter of Margaret Eliza Waldron, 13 Johns., 418; In the matter of Kottman (So. Car. 1833) 2 Hill, 363, 27 Am. Dec. 390. See In re Barry, 42 Fed. 113, and the cases cited in State v. Smith, 6 Me., 462, 20 Am. Dec., 324.The basis on which the sovereign acting through its judicial officers exercises this right is well stated in In re Barry, supra, at page 118 as follows: “The state thus acting upon the assumption that its parentage supersedes all authority conferred by birth on the natural parents, takes upon itself the power and right to dispose of the custody of children as it shall judge best for their welfare. People v. Chegary, 18 Wend. (N. Y.), 642, 643; Blissets’ Case, Lofft, 748. The cases before cited show that the English and American courts act in this behalf solely upon the assertion of the right of the sovereign whose power they administer to continue or change the custody of the child at his discretion, as parens patriae, allowing the infant, if of competent age, to elect for himself; if not, making the election for him.” Where the writ is dismissed and control of a child remains where it is, there may be no need of an order providing for custody; but we see no objection in providing, as was done in the instant case, that custody shall remain in the respondent.
No rigid rule can be laid down to guide the court in questions
The principle which has been almost uniformly followed by courts for more than a century is well stated by Judge Story in United States v. Green, supra, 485, as follows: “As to the question of the right of the father to have the custody of his infant child, in a general sense it is true. But this is not on account of any absolute right of the father, but for the benefit of the infant, the law presuming it to be for its interest to be under the nurture and care of his natural protector, both for maintenance and education. When, therefore, the Court is asked to lend its
The statement of Chief Justice Shaw in the case of Pool v. Gott, 14 Monthly Law Rep., 269, quoted in the opinion of Hoxsie v. Potter, supra, 16 R. I., 374, 376, is peculiarly applicable to the facts before us: “Although there is no agreement proved, yet the conduct of the father, during nearly the whole life of the child, furnishes reason for supposing that he surrendered his rights over the child, by a tacit understanding, if not by an express agreement. He has, for eight years or more, been able to retake the child, and has made no offer to do so. No demand or offer has been made on either side, that he should contribute to her support. His present assertion of his right is in consequence of what he deems an unreasonable refusal of a different request. By his own acquiescence he has allowed the affections on both sides to become engaged in a manner he could not but have anticipated, and permitted a state of things to arise which cannot be altered without risking the happiness and interest of his child. He has allowed the parties to go on for years in the belief that his legal rights were waived, and this relation of adoption sanctioned and approved by him. Under such circumstances I do not think that the petitioner is in a position to require the interference of the court in favor of a controlling legal right on his part, against the rights, such as they are, the feelings, and the interests of the other parties.”
In the case now before us the petitioner bases his claim solely on his supposed right as father of the child, a right which he
This petitioner for a period of more than four years showed not much more than a formal interest in his child. Circumstances were such that perhaps this was inevitable. He knew that the child was well cared for and was content to let the natural ties which bound him to his offspring grow very tenuous. Since the death of his wife there is little evidence that he has had any great yearning to have his child with him, to sacrifice for her, or to lavish on her the affection which would have meant so much to her in her tender years. Instead he surrendered this high privilege to the grandmother, who with the help of her unmarried daughters has given to this child the same devotion as it would have received from its own mother. Now having permitted all this to happen he claims the right, because he is the father, to sever the ties which bind this child to the respondent. In this instance the welfare of the child is paramount. The dictates of humanity must prevail over the whims and caprice of a parent.
Exceptions overruled.