Ramsay v. Ramsay

20 Wis. 507 | Wis. | 1866

Cole, J.

There is no good reason shown for depriving the mother of the care and custody of the child. It is an infant female, about two years old, and on the death of the father the mother became its lawful guardian. It may be that the mother has no means to support and maintain the child; but this furnishes no just cause for depriving her of its custody, and giving it to the paternal uncle. The guardian by nature, on the death of the father, is the mother. She has a right to the person of her child, unless it appears that she is an unfit person to have control of it. An effort was made to show that she was destitute of affection for her offspring, or was of so quick and violent a temper as rendered her unfit or unsuitable to have charge of the child. The proof however fails to establish any such case. It does not show that her character or conduct has been such that a court would be authorized to interfere and deprive her of the care and custody of this infant child. Nor do we think the declarations of the deceased father, to the effect that he had given the child to his brother, entitled to much weight. The evidence in regard to them is quite too indefinite and unreliable to guide the action of the court in determining the question as to who should have the custody of the child. It is claimed that the respondent has mistaken her remedy, and that the practice pursued in this case is irregular. It appears that the appellant was appointed by the county judge guardian of the child on the 29th day of November, 1864, the mother having no notice that the application for such appointment would be heard on that day. On the 20th of December following, the mother made application, by petition to the county court, that this appointment be revoked and annulled, and that the child be delivered into her possession and custody, and that she he appointed its guardian. The county court, on the hearing, dismissed this application, and the respondent took an appeal. The circuit court held, after a full investigation into the matter, that the appointment of the appellant as guardian of the child was improperly and irregularly made, and ordered that he deliver it into the custody, care and keeping of the mother. The order did not in so many words revoke the letters of guardianship which had been issued to the appellant. Perhaps the order did not go as far as it should in this particular. But surely the error is not one of which the appellant can complain. If the order is not as favorable an one as the respondent was entitled to take under the circumstances, how is the appellant prejudiced by such a defect in the order ? "We cannot see that the proceeding is open to any objection.

By the Court. — The order of the circuit court is affirmed.