82 Va. 433 | Va. | 1886
delivered the opinion of the court.
This is a proceeding by habeas corpus, on the part of the father to obtain control and the custody of his infant child. The respondents are the maternal aunt of the infant child and her husband. The facts are, briefly, that the father, an Ohio ' man, married in Frederick county, Virginia, the mother of this infant, some years ago, who bore him three children, the third being this infant, who was born on the 13th of December, 1872, and the mother died three weeks after; whereupon the infant was taken charge of by the mother’s sister, and brought to Virginia with the consent of the father, where she, the said infant, has remained ever since. In the meantime, the father has married another wife, who is childless. The two other children, a girl and a boy, have always remained with the father; and during the thirteen years of his daughter’s life in Virginia, he has only seen her two or three times, and has never seen her at all except when called to Virginia on business connected with her mother’s property. And he has contributed nothing to her support except the nominal rent obtained from the grandmother for the undivided interest of the first wife in the home place. The grandmother, who had long been greatly enfeebled by age and bodily infirmity, having died, the father came to Frederick county, Virginia, and announced his purpose of carrying his daughter, Bessie» the subject of this controversy, with him out to Ohio, having in the meantime sold her mother’s land, and qualified as her guardian.
Finding his daughter.in delicate health, and greatly opposed to going with him, and her aunts anxious to keep her, he entered into an agreement with the respondents that if they would support the child without charge against him as her guardian they could keep her; to which they assented. And
“Winchester, Va., April 28th, 1885.
“ Whereas Hugh M. Merritt, guardian of his minor child, Sarah E. V. Merritt, has left said child in our care and keeping (until she is tiventy-one years of age), we, the undersigned, Jacob L. Swimley and Mary 13. Swimley, do agree and promise to bear all expenses of her boarding, clothing, and tuition, <&c., without making charge against said Hugh M. Merritt as guardian of said child.”.
The respondents inserted the words until she is twenty-one years of age, which they insist was the agreement, signed it “J. L. Swimley, Mary D. Swimley,” and delivered it to the counsel of the father. When this paper was received by Hugh M. Merritt he refused to sign it, admitting that he had made the agreement without the added words, but denying that the arrangement was to continue until the .child was twenty-one years of age, and forthwith instituted these proceedings in the county court of Frederick. A mass of evidence was taken on both sides, when the judge of the county court remanded the infant to the custody of the defendants, and dismissed the petition and writ. Whereupon the plaintiff applied for a writ of error to the circuit court of Frederick county which was refused. Whereupon the said plaintiff applied for a writ of error to this court, which was awarded.
All the evidence is certified, and by agreement of parties entered of record, the case is submitted to this court without any burden upon the exceptor; it being agreed that all the evidence on both sides is to be considered' as in a chancery case on appeal. It is proved in the case that the plaintiff in error is the father and guardian of the infant child. And it
It was said bj7 a learned judge (State v. Smith, 6 Greenl., 462), “that the father is generally entitled to the custody of his infant children is a principal resulting from his obligation to maintain, protect and educate them. These are duties thrown upon him by the law of nature as well as of society, which he is not permitted to disregard, and which he could not conveniently discharge if the object of those duties was withdrawn from his control. The right, however, is neither unlimited nor inalienable. It continues no longer than it is properly exercised. And whenever abused, or whenever the parent has become unfit, by immoral or profligate habits, to have the management and instruction of children, courts of appropriate jurisdiction have not hesitated to interfere to restrain'the abuse, or to remove the subject of it from the custody of the offending parent.”
As a general rule the writ of habeas corpus, and all actions on it, are governed by the judicial discretion of the court, in directing which all the circumstances are to be taken into consideration. In the case of a child of tender years, the good of the child is to be regarded as the prominent consideration. There may be cases in which the court would not interfere in favor of the father to take the child from any safe custody to deliver it to him, as when he is a vagabond, &c. Com’th v. Briggs, 16 Pick. 203. But there may be cases where the reputation of the father is stainless; he may not be afflicted with the slightest mental, moral or physical disqualification from superintending the general welfare of the infant; the mother may have separated from him without the shadow of a pretense of justification; and yet the interests of the child may
The decided cases establish the principle that the court has a discretion upon the subject, and that the interest of the child is the chief consideration to be looked to. In the case of Fisher v. Alston, 6 How. 406, Mr. Justice Turner said, after reviewing the case where a guardian sought the possession of the children against the mother, “in cases like the present proceeding under the writ of habeas corpus, the technical legal rights of the parties do not govern,” and the children were given to the mother. In a case like this, the welfare of the infant is the pole-star by which the discretion of the court is to be guided. But the legal rights of the parent or guardian are to be respected. They are founded in nature and wisdom, and are essential to the peace, order, virtue, and happiness of society. But they may have been abandoned, or released, or transferred, says a learned author. Hurd on H. C., page 528. “ It frequently happens that the father of an infant, upon the death of its mother, or other event, makes an arrangement by
In this case the father transferred the custody of his child, before it was a month old, to female relatives, who have tenderly nursed and reared it, almost altogether without aid from the father. Whether from necessity or choice, the father has permitted this child to grow up a stranger to him, almost unknown to him by sight, perhaps entirely so. In the new home the tenderest ties of affection have been wound around
Can it be held to be to the interest of this child to tear her rudely against her own wishes from this happy home, to place her in the ruder surroundings in the far West? Upon what principle, not in itself cruel and revolting, could it be so held? The real question in a case like this is not what are the rights
The learned judge of the county court seems to have given great weight to the wishes and choice of the child, who appeared to him to be of sufficient age and judgment to exercise this discretion; and in that he has our entire concurrence.
The order remanding the child to the custody of the respondents was plainly right, and will be affirmed. It is not proper to pass upon any other question under these proceedings, and the order of the county court, appearing to be without error, the same is affirmed.
Judgment arrirmed.