Raines v. Harris ( 1920 )

Beck, P. J.

(After stating the foregoing facts.) While the evidence tending to show the fitness of the respondent for the custody of the minor involved in this controversy is quite strong, there is some evidence tending to show that the mother is also a fit person; and we cannot reach the conclusion under the evidence that the court abused his discretion in awarding the custody of the child to the petitioner. It is true that the mother and father had lived in a state of separation for quite a while before the father’s death, and at the time of his decease a suit for divorce was pending; but no divorce had been granted. The minor whose custody is being considered here was more than fourteen years of age, and her father had appointed the respondent testamentary guardian. But that is not conclusive us against the mother. It is declared in the Civil Code, § 3022: “Upon the death of the father, the mother is entitled to the possession of the child until his arrival at such age that his education requires the guardian to take possession of him. In cases of separation of the parents, or the subsequent marriage of the survivor, the court, upon writ of habeas corpus, may exercise a discretion as to the possession of the child, looking solely to his interest and welfare.” And if the law had remained unchanged by the act of 1913, dealing with the subject of the custody of minor children, which is embodied in section 3022 (a) of Park’s Code, we might have concluded that under the provisions of section 3022 the minor in question here having reached the age of fifteen years, which is such an age that her “education requires the guardian to take possession/’ the court should have awarded the custody oí the minor to the guardian, clearly shown to be a fit person to have the custody. But the act of 1913 just referred to provides that “In all cases where the custody of any minor child or children is involved between the parents, there* shall be no prima facie right to the custody of such child or children in the father, but the court hearing such issue of custody may exercise its sound discretion, taking into. consideration all the circumstances of the case, as to whose custody such child or children shall be awarded, the duty of the court being in all such cases in exercising such discretion to look to and determine solely what is for the best interest of the child or children, and what will best promote their welfare and happiness, and make award accordingly.” And while in terms this statute just quoted relates to cases between parents where the custody of a minor child is involved, it is not inapplicable in a case like this, between the mother and a testamentary guardian appointed by the deceased father. And giving the statute the effect it would have if the controversy over the custody of the child were between the father and the mother, the disposition of the child-under habeas-corpus proceedings rested in the sound discretion of the court; and under all the facts it is not made to appear that the discretion of the court was abused.

Judgment affirmed.

All the Justices concur.