318 Mass. 459 | Mass. | 1945
This petition is brought under G. L. (Ter. Ed.) c. 248, §§ 35-40, to secure the release of the petitioner’s minor child, Mary F. Stinson, born October 3, 1937, from
The sections of the General Laws .referred to above were originally enacted as St. 1894, c. 536, under the title, “An Act relative to personal liberty.” They are now incorporated without change of substance at the end of a chapter entitled “Habeas Corpus and Personal Liberty” under the subheading “Personal Liberty.” They provide an alternative method by which relief can be had by petition, hearing, and decree in the Probate Court without the more cumbersome proceeding of issuing a writ of habeas corpus, which, when issued, can be made returnable only to the Supreme Judicial Court or a justice thereof, before which court or justice the alleged prisoner must be produced at the time of the return and the hearing must be had. G. L. (Ter. Ed.) c. 248, §§ 2, 4, 10, 11, 12, 15. See now also G. L. (Ter. Ed.) c. 213, § 1A, as inserted by St. 1939, c. 257, § 1, and amended.
Provisions of the statute material in the present case may be summarized as follows: Section 35 reads, “No person shall be deprived of his liberty or held in custody by any person or in any place against his will or, if he is a minor, against the will of his parents, guardian or other person entitled to his custody, except by due process of law . . . [not to apply to persons serving sentence for crime].” Section 36 provides that whoever has reason to believe that another person is deprived of his liberty or held in custody in violation of the preceding section may file the petition. The remaining sections contain provisions for notice to the supposed custodian (§ 37), for examining him and other witnesses, and for the making of orders for the release of the person held in custody or for permitting correspondence or personal interviews between him and his friends or relatives and for modification of the court’s orders upon notice to the parties (§ 38).
We think this statute is adapted for use, just as the writ of habeas corpus itself might be used, by the person entitled
The evidence is reported and is conflicting upon material points. However, the following facts may be deemed established either by findings of the judge supported by evidence or by evidence not seriously disputed. The petitioner is “an engineer” and is employed “in the Navy Yard.” At the time of the hearing he was forty-four years of age. About a year after his wife’s death he married again and now lives in a six room apartment in that part of Boston known as Dorchester with his second wife and four children, of whom two, a whole brother and whole sister of Mary, arc children of the first marriage and two, a half brother and half sister of Mary, are children of the second marriage. The petitioner appears to be a man of good reputation and to be financially able to support his child. For about a month after her birth Mary was in a Waltham hospital. After that, the petitioner, having no place to take her, voluntarily brought her to the respondents’ residence in Stoneham. The respondents took her in and kept her, cared for her and supported her, and were still doing so at the time of the hearing, a period of about five and one half years. The petitioner made no financial arrangement with the respondents to pay for her support. During the whole period he gave them $38, paid by way of gratuity and not at the respondents’ demand. He visited Mary twice in 1938 and not at all in 1939. He saw her twice in 1940, once by accident, not at all in 1941, and twice in 1942. He gave her a $25 war bond at Christmas, 1942. “During all this time ... he never asked for the child’s return nor gave any indication that he ever expected her to be returned to him.” Her older brother and sister have visited Mary “two or
The judge made a further finding on all the evidence that “the petitioner abandoned the child.” We do not construe this finding as intended to mean that the petitioner was guilty of the crime of abandonment defined in G. L. (Ter. Ed.) c. 119, § 12, as amended. We think' the evidence would not support a finding to that effect. We construe the finding as intended to be consistent with the more specific findings and as meaning that the petitioner did not seek the possession of his child when he could have done so, but
This case must be governed by principles fully developed in the leading case of Richards v. Forrest, 278 Mass. 547, and followed in the very recent case of Gordon v. Gordon, 317 Mass. 471. Both cases presented facts closely parallel to those in the present case. In both cases the parents placed their child while very young in the care and custody of her uncle and aunt and allowed her to remain there, supported at their expense, for a period of years until affection sprang up between the child and her custodians, and the latter came to occupy the position toward .the child ordinarily occupied by the true parents, so that custody of the true parents could not be restored without a distressing and harmful experience. Yet it was held more important in the long view that the child should be reared with her own next of kin and in companionship with her own brothers and sisters. It is unnecessary to repeat the reasoning fully set forth in those cases. Careful comparison of the facts upon which the Richards case was decided with those upon which the present case must be decided fails to reveal any differences in favor of the present respondents which can fairly be deemed determinative. It is true that in that case it was stated that "Apparently the child is not a stranger to her parents,” while in the present case it is found that the petitioner and his wife are "strangers” to the child. But in the Gordon case it was likewise found that the child had had only "casual contacts” with her parents. It is also true that in both the Richards case and the Gordon case the true mother was living, and there was no stepmother with children of her own. In some cases this might become a' circumstance of consequence, but there is nothing to show that it is so here. It does not appear that the petitioner’s wife treats his children any differently from her own or that she has riot fully assumed the position of a mother toward all of the children in the family. There was some evidence that when first married she stated that she did not wish to take over the care of Mary when she took over the care of the older children, but this was denied,
In the Richards case it was said that great weight must be given to the decision of the probate judge, and that the case was very close (278 Mass, at page 556). Nevertheless, in the absence of some more than nominal or irrelevant distinction we feel bound to follow the Richards and Gordon cases. See Bottoms v. Carlz, 310 Mass. 29.
This case appears to have been heard in the Probate Court in the spring of 1943. It was argued here in May, 1945. More than two years will have elapsed after the hearing in the Probate Court and before the rescript upon this decision is handed down. If decisive changes in the governing circumstances have occurred in that period, the decree after rescript may be adapted to existing conditions without the commencement of new proceedings by any party. See Gray v. Parke, 155 Mass. 433, 438; Day v. Mills, 213 Mass. 585.
Decree reversed.