Sheers v. Stein, 75 Wis. 44

Sheers v. Stein

75 Wis. 44 | Wis. | 1889

LyqN, J".

The arguments of counsel on both sides are long, eloquent, and able, and cover every phase of the case. ^Counsel cite therein numerous authorities to sustain their 'respective positions; but it is deemed unnecessary to review .them here, because the law of the case seems to be well .settled, and it may be stated quite briefly.-

By the common law, as interpreted in some of the old cases, particularly in England, the father had almost an absolute right to the care and custody of his minor child, without much regard to his fitness therefor or the welfare of the child. Modern adjudications, both here and in England, have greatly modified the rule, and have incorporated *51in tbe law more sensible and humane elements. It is now well settled, at least in this country, that although prima facie the father is entitled to the care and custody of his infant child, yet, if he be an unfit person therefor, or if it be for the welfare of the child that its nurture be committed to another, the court before which the matter is pending on habeas corpus may, in the exercise of a sound judicial discretion, deny such custody to the father, and give it to another. The same discretion is necessarily vested in any officer authorized to issue the writ. For a history of the law on this subject, and a statement of its present condition, see Hurd, Hab. Corp. ch.9, §§ 3-7, where references to numerous cases relating thereto will be found.

The exercise of such discretion in a proper case is not inconsistent with the following provisions of sec. 3964, R. S., which are much relied upon by counsel for petitioner: “ The father of the minor, if living, and, in case of his death, the mother while she remains unmarried, being themselves respectively competent to transact their own business, and not otherwise unsuitable, "shall be entitled to the custody of the person of the minor, and to the care of his education.” This statute leaves open the inquiry as to the suitableness of the parent for that purpose; and it seems quite obvious that if, for any cause, the welfare of the infant demands that its care and custody be withheld from the parent and given to another, the parent is not a suitable person to have such care and custody, within the meaning of the statute. It was so held, in effect, in In re Goodenough, 19 Wis. 274. A statute substantially like the present statute was in force when that case was decided (R. S. 1858, ch. 112, secs. 5-7); yet it was held, on habeas corpus, that it was within the sound discretion of the court or officer to change the custody of an infant of tender-years, and that sufficient appeared to justify the exercise of such discretionary power in that proceeding by refusing to give the *52custody of the child to .the petitioner, who was its father. The refusal went upon the ground of the bad character of the father; but, manifestly, the same rule is applicable if any other valid cause of unsuitableness exists.

In the present proceeding, we think the return of respondents to the writ of habeas corpus alleges facts which, if true, justify the exercise of discretion by the commissioner in respect to the care and custody of the child, Agnes Minnie. Such return is fully supported by the commissioner’s findings of fact. Indeed, those findings make a stronger case against the petitioner than does the return. Such additional findings are specified in the above statement of the case, and will not be repeated here.

The testimony, or so much of it as appears in the return of the commissioner to the writ of certiorari, is sufficient, we think, to support the findings of fact, and consequently the averments in the return of the respondents to the writ. The testimony shows that the financial condition of the petitioner has much improved since he went to Nebraska, and he is now entirely able to support his child, and that he is a person of good character and repute. But the testimony also shows, or at least tends to show,— and on sufficient evidence the commissioner has found, — the existence of other facts which furnish a basis for the exercise of his discretion in the matter, and justified him in remanding the child to the custody and care of the respondents. That the petitioner voluntarily surrendered the child to the respondents to nurture and maintain as their own; that he suffered them to *do so, without objection, until they had come to feel for her all the affection of natural parents, and she to regard them as .her parents; that the respondents are able and willing to do their whole duty towards her, by caring for, supporting, and educating her as their own daughter; that they have ample means to do so, and are persons of high moral character; that the petitioner *53bas never manifested any proper affection for the child, but his conduct towards her was in such marked contrast to his treatment of his little son as to excite the attention of some of the witnesses; and, lastly, that after the death of .his wife, the mother of the child, he expressed to his brother the horrible belief or suspicion that his dead wife in her life-time had played the harlot, and that he was not the father of the child over whom he now seeks to obtain paternal rights,— are verities in the case. We cannot doubt that the testimony sustains the finding of the commissioner that the petitioner is not a proper person to have the care and custody of the child, and justifies the exercise of his discretion in awarding such care and custody to the respondents. We conclude, therefore, that the circuit court properly affirmed the order and judgment of the commissioner.

Certain questions of practice, in such cases, have been raised by counsel for respondents. We do not pass upon or consider them, because we think it our duty to determine the matter on the merits. It harms neither party to leave those questions undetermined, and their solution must await a more convenient time.

By the Court.-— The judgment of the circuit court, affirming the order and judgment of the court commissioner, is affirmed.