14 Cal. 512 | Cal. | 1860
delivered the opinion of the Court—Field, C. J. and Cope, J. concurring.
No questions arise in Courts of Justice more interesting or important than those which affect the domestic relations of society. The happiness of the community is deeply concerned in the right establishment and just understanding of the rules which govern these relations. The record in this case involves the question, whether the father or the mother is entitled to the custody of an infant child, under the circumstances hereinafter stated.
The plaintiff brought her bill for a divorce, a vinculo, from her then husband, the defendant, upon the ground of extreme cruelty. This cruelty consisted, as averred and proved on the trial, in an attempt to kill her, by snapping a loaded pistol at her breast. This effort failing, he shot himself, inflicting a dangerous wound. This conduct seems to have been the result of jealousy, but we look in vain into the record for anything to justify it. There is no allegation in the answer, impeaching the fidelity of the plaintiff, nor is there anything in the proofs which even throws suspicion upon the purity of her conduct, apart from these acts of the defendant, which seem to have been un
The Judge below made a decree dissolving the marriage, and giving the custody of the child to the father. The child is an interesting girl of some six or seven years of age. The plaintiff, since the decree, has married—the defendant is single.
This appeal is taken from so much of the decree as fixes the custody of the child. Possibly, the plaintiff might have some difficulty in maintaining the decree of divorce upon the ground of extreme cruelty, founded upon this single act, under all the circumstances; 'although, as no appeal has been taken from that portion of the record, it is not necessary to consider the point, or intimate any opinion upon it.
The question of law raised by this statement is this: Is a husband, divorced from his wife, at her instance, for extreme cruelty, entitled to the custody of a female child of tender years— the conduct of the wife being without blame? This question has been discussed by the counsel with learning and ability.
It is not denied that the husband, as the head of the family, has the direction and control of the family, and of family affairs, and that his will and judgment are paramount to those of the wife, as well in respect to the custody of the children of the marriage, as to other things. But after the marriage has been dissolved, the question is different.
It is difficult to see upon what principle he is to be regarded as the superior, or as having superior rights, on the cessation of the matrimonial connection, to the other partner, now released from all marital obligations or obedience to him. Bishop on Marriage and Divorce, (Sec. 641,) uses this language: “If we were to look at this entire question of the custody of children in the light purely of legal principle, without either embarrassment or aid from specific adjudications, we should probably arrive at results substantially in accordance with the equity of those doc
We have made citations at such length because the doctrinéis clearly and concisely stated, and is decisive of this case.
The case of Commonwealth v. Addicks & Wife, (5 Bin. 520,) is a strong case for the Appellant—perhaps going too far. There, the father was divorced for adultery of the wife. The question was as to the custody of two young girls. The Court said:
“We are not bound to decide who is entitled to the guardianship or to deliver infants to the custody of any particular person. But we may in our discretion do so, if we think that, under the circumstances of the case, it ought to be done. For this we refer to the cases of The King v. Smith, (2 Stra. 982,) and The King v. Dalaval, (3 Burr, 1436.) The present case is attended with peculiar and unfortunate circumstances. We cannot avoid expressing our disapprobation of the mother’s conduct, although, so far as regards her treatment of the children, she is in no fault. They appear to have been well taken care of in all respects. It is to them that our anxiety is principally directed; and it appears to us that, considering their tender age, they stand in need of that kind of assistance which can be afforded by none so well as a mother. It is on their account, therefore, that exercising
*518 the discretion with which the law has invested us, we think it best at present not to take them from her. At the same time wé desire it to be distinctly understood that the father is not to be prevented from seeing them. If he docs not choose to go to the house of their mother she ought to send them to him when he desires it, taking it for granted that he will not wish to carry them abroad so much as to interfere with their education.”
The numerous cases cited by Respondent’s counsel, are cases where the marital union continued—under articles of separation or otherwise—and hence where the control of the husband given by that relation subsisted.
If we look to the interest of the child, which should be a leading, if not a paramount, consideration, the observations of Chief Justice Tilghman, above quoted, are too obviously true to require illustration. That a child of the tender age of this could be better cared for by the mother, with whom she could be almost constantly, than the father, whoso necessary avocations would withdraw him, in a great measure, from personal superintendence and care of her, is plain enough. Indeed, if the dominion of the child should be given to the father, it is very evident that he must confide her person to some female to care for and keep her; and upon the person thus selected would depend, in a great degree, the happiness and welfare of the infant. We do not sec why the mother should not, in the first instance, be intrusted with this office, for which she seems, upon every ground of humanity and natural right, to have the claim. For it does not at all follow that, in the present unhappy state of relations of these parties, the care or protection of the father is to be relinquished, or his parental duties or obligations destroyed. On the contrary, he has a right to be admitted to see the child at all convenient times when he may desire it. For the purpose of insuring him in the enjoyment of this right, he may have leave at any time to apply to the District Court for the necessary orders—for which the cause may be considered as open, so as to provide the necessary relief, if application be unhappily necessary. But it is to be hoped that this matter can be, as it should be, amicably settled by the parties so as to give the full benefit of parental protection and care to this child, and at the same time give to both parents the comfort of her society.