| Ill. | Dec 15, 1849
No complaint is made of the decree granting the divorce. The principal question submitted for our consideration, relates to the proper disposition to be made of the child.
In determining this question, it is insisted that we ought not to look into the depositions, which were taken upon the trial of the main issue, and that we should limit ourselves to an examination only of such evidence, as was taken upon this incidental Question. This is an appendage of the original suit, and all proofs regularly taken in the case, and bearing upon the present inquiry, are subject to an examination. We are asked to be more exclusive in the admission of evidence in this than in any other case, whereas the reverse of this proposition has been decided to be the correct rule, and so laid down in Cowls vs. Cowls, S Gilman, 435. In that case, also, the jurisdiction, powers and duties of a Court of Chancery, in the disposition of infants within its jurisdiction, are fully set forth; it is, therefore, unnecessary to enlarge upon them here. A Court of Chancery is seldom called upon to exercise a jurisdiction of so embarrassing and important a character as this, or one which requires more serious and anxious consideration. In the exercise of it we are called upon, not only to interfere with the interests of suitors, but to sound the deepest feelings of the human heart—the love of parents for their children. Especially in the present case, where the parents are separated by a divorce, and both seem equally attached to their offspring.
Upon the extent of the legal right of the father to the custody and control of his children, many contradictory decisions are to be found; we think it clear, nevertheless, that he does possess that right, unless he has forfeited, waived or lost it, either by misconduct, misfortune, or some peculiar circumstances, sufficient in the opinion of an enlightened chancellor to deprive him of it. In the event of a separation of the parents, this right must be conferred upon one of them, otherwise the impulses of their natures would induce them to resort to violence to retain possession of their children. • Next to the right of the father that of the mother must be recognized. These rights, however, are subject to the control of the Court of Chancery, and when its aid is invoked, while it may not disregard the natural rights of parents, and the ties of blood, the best interests of the child must be primarily consulted. It is upon this consideration that an infant of tender years is generally left with the mother, (if no objection to her is shown to exist,) even when the father is without blame, merely because of his inability to bestow upon it that tender care which nature requires, and which it is the peculiar province of a mother to supply.
This remark will apply with much force in cases of female children of a more advanced age. While the affection of parents for daughters may be equal, yet the mother, from her natural endowments, her position in society, and her constant association with them, can give them that care, attention and advice so indispensable to their welfare j which a father, if the same children were left to his supervision, would be compelled in a great degree to confide to strangers. I know there are some decisions of the common law Courts of England, of a late date, where they have, by the writ of habeas corpus, torn nursing infants from the arms of innocent and unexceptionable mothers, and placed them in the hands of fathers, to be reared by adulteresses, with whom the fathers were living. But so far as I am informed, a Court of Chancery has never been disgraced by such a decision. Clothed with more discretion, it is to be hoped that Court will continue to exercise that discretion under a more benign influence.
In no case do I find this legal right of the father asserted, where a divorce has been granted for his fault or misconduct. If such right ever did exist, so as to abridge or control the exercise of the equitable discretion of the Court of Chancery, it has been entirely removed by our statute; which authorizes the Court, when a divorce shall be granted, to make such order touching “ the care, custody and support of the children, or any of them, as from the circumstances of the parties and the nature of the case shall be fit, reasonable and just.” What then is fit, reasonable and just, under the circumstances of these parties, and the nature of this case ? Such a case of ill treatment of the wife is shown, as authorized the Court, under our statute, to grant a divorce. In determining the question submitted to us, we shall not minutely review the evidence upon which that Court decided, but will content ourselves with remarking, that it shows the defendant to be a man of irascible temper and violent resentments, over which at times he loses all control. Towards his wife, at least, his conduct was so unreasonable, oppressive, and we may add cruel, as to render her life miserable, and to cause her health to be seriously impaired. It may be that her education, tastes and habits of thought, may have unfitted her for the situation and circumstances in which she lived, and that she was unreasonable and irritating in her complaints; but these would not furnish a justification for the conduct of the husband towards her. Towards the child, his conduct, so far as is shown from the evidence, seems to have been unexceptionable. That he has the proper affection for her we may not doubt, and it may be that towards her his unfortunate temper would be but seldom manifested.^ Notwithstanding this, it cannot be expected that he would bestow that personal care and attention upon a girl seven or eight years old, which may be expected from a mother, who appears to be well qualified for the care of the child, and against whom no just objection is shown to exist. If left with the father, the child must, to a great extent, be entrusted to the superintendence of others; her nature will lead her to associate with her own sex, by whom her manners will be formed, her thoughts and tastes directed, and, in truth, her character mainly moulded. His occupations will doubtless prevent that constant watchfulness over her, so essential to her proper cultivation, and which could be better contributed by a vigilant and tender mother. We shall, therefore, leave her for the present, at least, where she has been placed by the Circuit Court.
It is apparent from the record that there is some Intention on the part of the mother, if allowed to retain the custody of the child, to remove her beyond the limits of the state. This cam not be tolerated, and must be guarded against. While the custody of the child is given to the mother, the father must not be wholly deprived of its society, but must be allowed access to It upon all reasonable occasions. The child, although intrusted to the care of the mother, is nevertheless the ward of the Court, and any attempt on the part of either parent to alienate its affections from the other, would be a contempt of the Court, and would be visited by its judgments as such. Indeed, this, by whomsoever attempted, would be held to be an abuse of the child, which the Court would consider it a solemn duty to prevent.
That portion of the decree which awards to the complainant in the bill the sum of fifteen dollars per month, to be paid by the respondent, is reversed, and the remainder of said decree i? affirmed, with costs. Upon this condition, however, that the said complainant enter into a bond to the people of this state, in the sum of two thousand dollars, with security to be approved by the master in chancery, or the clerk of the Circuit Court of Greene county, conditioned that the child shall not be removed beyond the jurisdiction of the state, and shall be produced at any time hereafter, upon the order of the said Circuit Court. And the suit must be remanded for such further action as future circumstances may require in the premises.
Decree modified.