60 A.2d 122 | N.H. | 1948
The pertinent statute, cited by the Trial Court, provides in part as follows: "The father and mother of every unmarried minor child are joint guardians of the person of such child, and the powers, rights, and duties of the father and mother in regard to such child shall be equal." R. L., c. 342, s. 4. The defendants in support of their exceptions rely mainly upon two propositions. They assert that the evidence establishes that the parents are unfitted and unsuitable to have custody of the child, and that it conclusively appears that the welfare of the child requires that she remain in the defendants' custody. The propositions to which they address themselves are not distinct, but closely interrelated. In cases such as these, the welfare of the child has repeatedly been stated to be the controlling consideration. Sheehy v. Sheehy,
The facts of the case before us do not greatly differ from those of other cases which have been before this court. The child, now nine, has lived with the defendants since September, 1941. They have borne substantially all of the expense of her upbringing, having consented to care for her when the parents were beset by illness and financial difficulty. While the child has lived in the vicinity of her parents' home for a major portion of the time, she has been nurtured by the defendants and now gives to them the affection which she *193 would normally have for her parents. The case is perhaps distinguished by the fact that the child is in poor health, which the knowledge of the pendency of these proceedings has not improved. There was evidence that a change of custody would ultimately result in serious nervous disorder.
The case is close. The issues have been decided adversely to the defendants. The possibility that the finding that the plaintiffs are "suitable and fit in their capacity as parents and guardians" was made without proper consideration for the welfare of the child does not appear upon this record to be a real one. The hearing was commenced in June, and on the second day, after discussion by Court and counsel of the "question of the child's welfare," followed by a conference between the Court and the parties personally, trial was adjourned until fall under a temporary order for alternate custody, entered in the hope that a less drastic solution would present itself. The hearing was resumed in late August. The findings and rulings of the Court indicate consideration of the pertinent facts, and familiarity with the authorities of this jurisdiction. Reference was made to Richards v. Forrest,
The prima facie right of natural parents is not easily controlled by other considerations. Hanrahan v. Sears, supra; Stinson v. Meegan,
We find no clear or definite indication in the record that the Court acted improperly or unintelligently in considering the evidence, or was in any way misled. Condiles v. Waumbec Mills, ante, 127.
Exceptions overruled.
All concurred.