Kelsey v. Green , 69 Conn. 291 ( 1897 )

Andrews, C. J.

Two errors are insisted on: (1) That the judge erred in holding that the question of the interest of the minor could affect the right of the plaintiff to the custody of his ward. (2) That the judge erred in overruling the claims of the plaintiff that the appointment of the defendant as guardian was void, for the reason that the Court of Probate in the district of Thompson had no jurisdiction to make the appointment.

Most of the argument which is made in behalf of the plaintiff seems to us to be misapplied. The contention here is not between the father on the one hand and a stranger as guardian on the other, but between two guardians; one appointed by a court at the place where the minor has had his actual dwelling-place for six or eight years, and the other by a court at the place where it is said the technical domicil of the minor’s father is. This writ, if granted, would not put the minor into the care and custody of his father, but into the hands of an utter stranger in fact as well as in blood; who, although a fit man tobe a guardian, can have no kindness or affection for the minor, nor for whom can the minor have any affection or good will. Prima facie, it is true, a father has the legal right to the custody of his minor child; but he has no absolute right which he can at his own will transmit to another, to the detriment of the child. The plaintiff was appointed guardian of the person of Clarence Ward, by a court in the State of New York on the application, as the record shows, of Ferdinand Ward, the father of Clarence. By that appointment, made on that application, it is very likely that the father has excluded himself from the right to claim the custody of his son. It is certain that the appointment of the plaintiff made on that application gains therefrom no added merit or force. The stress of the argument made here, that the parental relation ought to control, has nothing to rest upon.

But were it otherwise, and the case was between the father and a guardian, we think the court did not err in considering the interest of the minor in determining into whose hands he should be placed. “ While it is the strict legal right of the parents and those standing in loco parentis to have the custody of their infant children as against strangers, a court will not, on habeas corpus, regard this right as controlling, when to do so would imperil the personal safety, the morals, health or happiness of the child in controversy. The right of the father or mother to the custody of their minor children is not an absolute right to be accorded to them under all circumstances, for it may be denied to either of them if it appears to the court that the parent, otherwise entitled to the right, ‘ is unfit for the trust.’ And in contests between parents and third persons as to the custody by such parents, the opinion is now almost universal that neither of the parties has any right that can be allowed to militate against the welfare of the infant. The paramount consideration is, what is really demanded by its best interests. And the rule is ordinarily the same in contentions between parents for the possession of children. .The court is not bound to award the custody to either contesting party in such controversies, but may, subject to the welfare and best interests of the child, award it to a third party. In contentions of this kind the child has the right to the protection of the court against such misfortunes of its parents, or the influences of such gross and immoral practices as will seriously endanger its life, health, morals or personal safety. But what measure of wickedness or profligacy on the part of the parent will be sufficient to warrant the court to deprive the parent of his natural right to the minor child, must necessarily depend upon the facts and circumstances of each particular case.” Church on Habeas Corpus, § 440. Authorities to support the rule thus expressed may be almost indefinitely cited. Thus in Richards v. Collins, 45 N. J. Eq. 283, 287, it is said: “ In resolving the general question what will best subserve the interest and happiness of the child, its own wish and choice may be consulted and given weight, if it be of an age and capacity to form a rational judgment. There is no fixed age which capacitates such choice. It depends upon the extent of the mental development. . . The wishes of children of sufficient capacity to form them are given especial consideration, where the parents have for a length of time voluntarily allowed their children to live in the family of others, and thus form home associations and ties of affection for those having their care and nurture, and when it would mar the happiness of the children to sever such ties. The relation of parent and child is regarded as not fully characterized by the relative duties of service and support. Nature’s provision of mutual affection commonly exists as the incentive to parental and filial duty and the bond of family union. It is the instinct of childhood to attach itself and cling to those who perform towards it the parental office ; and they become endeared to it by ministering to its dependence. A parent, by transplanting his offspring into another family and surrendering all care of it for so long a time that its interests and affections all attach to the adopted home, may thereby seriously impair his right to have back its custody by judicial decree. In a controversy over its possession, its welfare will be the paramount consideration in controlling the discretion of the court. The strict right of the parent will be passed by, if a judgment in observance of such right would substitute a worse for a better custodian.”

In the matter of Jeremiah O'Neal, 3 Amer. Law Review, 578, 579, Judge Hoab gave this opinion: “Suppose by a pure misfortune, as insanity, or being cast away, ... a father has left his child destitute and dependent on charity; does this give the child the right to form such new relations as to take from the father the right to the custody of the child? Upon the best reflection, I am satisfied that it does. When the father, by misfortune, is compelled to leave the child utterly helpless, the child ought to be considered as emancipated by the father. If by misfortune, the child has made new relations in life, so deep and strong as to change its whole nature and character, the father has no right to reclaim it. I am satisfied that this is a sound proposition. The child is not the father’s property. It is a human being, and has rights of its own. The father has a right to the custody of his child, because, from general experience, the natural and trained' affections of the child attach to the father and those of the father to the child. If the father has left the child at an age too early for it to remember him, and it is placed in circumstances so that it must perish unless cared for, and other persons have expended money and become attached to the child, and the child has formed such associations as cannot be severed without injury to it, then the father has no legal right to sunder those ties. It is within the judicial duty of the court to determine that the assent of the father has been given to the arrangement, which cannot be terminated without injury to the child. This principle would apply under the same circumstances if the father became insane. A human being cannot be treated like a piece of property.”

In State ex rel. Lynch v. Bratton, 15 Amer. Law Register, 359, the court uses this language: “The father’s right (to the custody of his infant child) is not absolute or unqualified. He may relinquish or forfeit it by contract, by his bad conduct or by his misfortune in being unable to give it proper care and support. Where a father has, through his fault or misfortune, lost or forfeited his right, and subsequently, by reformation or otherwise, reinstates himself in a position to properly care for and maintain his child, his right does not necessarily revive, but a court upon habeas corpus will exercise a sound discretion in view of all the circumstances with reference to the welfare of the child itself.”

On the hearing of a habeas corpus relative to the possession of a child, the question is one of discretion, and the further question whether the father is the proper person to have the care of it, is legitimate. Johnson v. Terry, 34 Conn. 259, 262; Chapsky v. Wood, 26 Kan. 650; Mercein v. The People, 25 Wend. 64; Verser v. Ford, 37 Ark. 27; 9 Amer. & Eng. Ency. of Law, 243; Prime v. Foote, 63 N. H. 52; In re Goldsworthy, L. R. 2 Q. B. Div. 75.

The Court of Probate in Thompson has jurisdiction to appoint a guardian to Clarence Ward. His actual, stated residence was in that district. Sections 458 and 459 of the General Statutes use the word “ resides ” in this sense, rather than in the sense of strict, technical domicil. Denslow v. Gunn, 67 Conn. 361. In other sections of our statutes generally, the word “ reside ” is used in a sense which includes all who are the actual, stated dwellers in any given place, even though they may have a technical domicil elsewhere. Yale v. West Middle School District, 59 Conn. 489; Conn. Hospital for Insane, v. Brookfield, 69 id. 1.

There is no error.

In this opinion the other judges concurred.