123 Iowa 165 | Iowa | 1904
Many of the facts upon which a solution of this controversy must depend are not in dispute. Elizabeth Miller, named as plaintiff, is the daughter, by birth, of James and Mary Murphy, and she was born .in Scotland, December 30, 1899. A few days after her birth, her mother died. The father had four other children, and plaintiff was given into the custody of the defendants in this proceeding, Thomas Miller and Marion, his wife — the former a brother of Mary Murphy — who then resided in Scotland. A short time thereafter, Thomas Miller and his wife came to this country, bringing the child with them. They settled in Polk county, this state, and the child remained in their custody up to the time of the judgment in the court below. In March, 1901, formal articles of adoption were entered into and executed by and between James Murphy, father of the child, who still resided in Scotland, of the one part, and James Miller and •K. E. Miller, his wife — the former a cousin of Mary Murphy — residing in Des Moines, of the other part, by the terms of which the said child was given to, and became the adopted child of the latter, with all the rights and responsibilities incident to proceedings of that character. Demand was thereupon made upon Thomas Miller and Marion Miller for the custody of the child, and, such demand being refused, .this proceeding was brought.
Appellants do not question the validity of the articles of adoption. This may be accepted as equivalent to an admission that whatever of legal right was possessed by Thomas Murphy, the father, as of the date of the articles, passed to, and became vested in, James and K. E. Miller. As it is the law of this state — made so by statute — that parents are entitled to the custody of their minor children, and as the adopted parents in this case are above reproach in point of moral character, are intelligent, and have sufficient means to properly care for and educate the child, we may proceed upon the theory that the order of the trial court was warranted and proper, unless the record discloses some superior right to custody on the part of the defendants. Of course, the best interests of the child should be kept in mind at all stages of consideration.
Having this outline of the situation before us, we may at once proceed to examine into the claim for retention of custody as made by defendants. At the time of the birth of the child, and the death of Mary, his wife, Murphy resided about fifteen miles from the city of Glasgow, and the defendants resided in said city. In answer to a telegram announcing the death of Mrs. Murphy, defendant Marion Miller went to the Murphy home. In respect of what transpired there, she testifies as follows: “I went up in the morning, and when I went in the father was crying, and he looked up and said, ‘Do you know, it is Mary’s last request that you should have this baby ?’ and he asked me to take the baby. I says, ‘I will take the baby on condition that you give it to me as my own forever, because I will take nobody’s child .unless I get it to keep forever.’ He went and got the birth papers,, and gave me the child and the papers. He gave me the baby to keep forever. He said he wanted me to have it, because it was Mary’s last request, and said he would never consent
It follows that if the evidence in the case before us fully establishes the fact that the custody of the minor plaintiff was given over by her father to the defendants without limitation or condition as to time, place, or circumstance, and the intent fairly inferable being to permanently divest himself of the right to resupie custody in the future, or that by reason of the lapse of time and change of conditions, he ought not to be permitted to resume custody — saving consideration of a phase of the subject presently to be referred to — it should be said that the custody on the part of defendants, thus acquired, should not be interfered with. But while we accept the law to be as thus stated, we are unable to agree vi th the
It is our conclusion upon the whole case that the order and judgment were warranted, and should not, therefore, be disturbed. — Aeeirmbd.