Sloan v. Jones , 1908 Ga. LEXIS 431 ( 1908 )

Lumpkin, J.

(After stating the foregoing. facts.)

The rulings of the trial court in regard to the pleadings and -the intervention of the maternal grandmother were of doubtful proprietjr; but as the child was produced in response, to the writ, the •court practically took him into custody by temporarily awarding him to a third person until the hearing could be had, and the application, of the mother set out the ability and willingness of, the grandmother to furnish a home for the child and rear him; and as the presiding judge preferred to hear the case on-its merits, and did so, we will pass, without further discussion, from, the technical questions of pleading, and deal with the substance of the case.

The right of a father to the custody of his minor child, and the discretionary power, of a judge, upon the hearing under a writ of habeas corpus issued at the instance of the wife, to award the custody to a third person, if the welfare of the child so requires, have frequently been the subject of consideration. .As early as 183(5, in the matter of Mitchell, Judge R. M. Charlton, of the superior court, filed an able and elaborate opinion on the subject. In the course of it he made use of the following language: “The power ought to be exercised in favor of the .party having the legal right, unless the circumstances of the case and the precedents established would justify it [the court], acting for the welfare of the child, in refusing its aid. It becomes important, then, to inquire who has the legal right to the custody of this infant; and it seems to,me that the answer that would rise to the lips, of any one, however unskilled he might be in the science of the law, would be that such right resides in the father. The law of nature, the feelings which Nod has implanted both in the man and the brute, alike demand 'that he who is nearest to it, who is the author of its being— who is bound to its maintenance and protection, and answerable to Nod for the manner in which it is reared, should have its custody, and the law of man, which is founded upon reason, is not. hostile to the assertion of this claim. . Lord Ellenborough, in the case of the King v. DeManneville (5 East, 223), speaking of the father,, says, ‘He is the person entitled by law to the custody of his child. If he abuse that right, the court will protect the child.’ . . But notwithstanding this legal right of the father, circumstances may exist which would justify a court, in this proceeding, in refusing to lend its aid to him in procuring the custody of his child, or even withdrawing the infant from his custody, when its morals, its safety, or its interests seem to require it. All legal rights, even those of personal security and liberty, may be forfeited by improper conduct; and so this legal right of the father to the possession of his child must be made subservient to the true interests or safety of the child, and to the duty of the State to protect its citizens of whatever age.” Numerous authorities, both English and American, were cited to sustain the positions announced. R. M. Charlton, 493 et seq. That decision was rendered before the organization of the Supreme Court, but it has been cited several times by this court. It arose on a writ of habeas corpus issued at the instance of Mitchell, the father of the boy whose custody was in controversy, against the child’s maternal grandfather, in whose house it was born and had remained, with the father’s consent, for some three months, up to the time of the issuance of the writ, the mother having died in childbed. It was contended that the father had promised his wife on her deathbed that the child should remain with her parents during its infancy, though this was denied by him.

In Miller v. Wallace, 76 Ga. 479, Mr. Justice Hall, as the organ' of the court, delivered a full and carefully prepared opinion touching the subject now before us, in which he reviewed and discussed various earlier decisions, including those of Mitchell, R. M. C. 493 ; Boyd v. Glass, 34 Ga. 258 (89 Am. D. 252) ; Taylor v. Jeter, 33 Ga. 195 (81 Am. D. 202) ; Bently v. Terry, 59 Ga. 555 (27 Am. R. 399) ; Janes v. Cleghorn, 54 Ga. 9, s. e. 68 Ga. 87 ; Smith v. Bragg, 68 Ga. 650 ; Lindsey v. Lindsey, 14 Ga. 657. After stating that it is indisputable that the father, under the law, has the control of his minor child, and that this .can be relinquished or forfeited only in one of the modes recognized by the law, and that it is equally clear that in writs of habeas corpus, sued out on account of the detention of a child, the court, on hearing all the facts, may exercise its discretion, as to the person to whom the custody of the child shall be given, and shall have power to give such custody to a third persop (Civil Code, §2453), he declared that “The discretion to be exercised in such case is not an arbitrary and unlimited discretion like that confided to the Boman praetors, but, as remarked by Lord Mansfield in R. v. Wilkes, 4 Burr. 2527, is such a ‘discretion as, when applied to a court of justice, means sound discretion guided by law.’ ” Again, he said: “The rule of discretion, as applicable to habeas corpus cases, did not originate with the compilers of our code; they took it from the common law, and in adopting it they adopted also the meaning and limitations placed upon it by the venerable sages and authorized expounders of that noble system. Under the ‘discretion’ vested in him, no judge has authority to disregard or even to impair any acknowledged or established right of a party by its exercise; and if he does so, it would seem to follow, as a necessary consequence, that he abuses that discretion. . . Prima facie, the right of custody of hn infant is in the father, and when this right is resisted, upon the ground of his unfitness for the trust or other cause, a proper regard to the sanctity of the parental relation will require that the objection be sustained by clear and satisfactory proofs. . . The discretion to be exercised by the courts in such contests is not arbitrary. The rights of the father, on the one hand, and the permanent interest and welfare of the infant, on the other, are both to be regarded, but the right of the father is paramount, and should not be disregarded, except for grave cause. The breaking of the tie that binds them to each other can never be justified without the most solid and substantial reasons, established by plain proof. In any form of proceeding, the sundering of such ties should always be approached by courts ‘with great caution and. with a deep sense of responsibility.’ ” That case was a controversy between the father of a female child four years old and the maternal grandparents. It appeared that the child’s mother, shortly before her death, stated that she wished her mother to take, care for, and raise the child, and for' a time the father allowed the child to remain with her grandparents.

In Taylor v. Jeter, supra, Jenkins, Judge, said (p. 203): “Had the respondent to the habeas corpus intended to rely upon the ground of unfitness for the office in the applicant, the latter should have been notified of it by a distinct allegation in the answer, and there should have been direct, satisfactory proof .adduced to sustain it.”

In Monk v. McDaniel, 116 Ga. 108 (42 S. E. 360), it was held, that “While the judge upon the hearing of a writ of habeas corpus for the detention of a child is vested with a discretion in determining to whom its custody shall be given, such discretion should be governed by the rules of law and be exercised in favor of the party having the legal right, unless the evidence shows that the interest and welfare of the child justify the judge in awarding its custody to another.” The decision in Miller v. Wallace, supra, was cited and approved. In Lamar v. Harris, 117 Ga. 993 (44 S. E. 866), Mr. Justice Candler said (p. 997) : “The law does not fly in the face of nature, but rather seeks to act in harmony with it, and to that end encourages the formation and continuance of those ties which, by the inscrutable providence of God, bind man to his own flesh.” In Looney v. Martin, 123 Ga. 209 (51 S. E. 304), the same Justice, in delivering the opinion, again approved this statement. These two cases turned on a contention that the father had" relinquished his parental control; and it was held that there must be clear proof to authorize the disregarding of the father’s right. See also Carter v. Brett, 116 Ga. 114 (42 S. E. 348) ; Richards v. McHan, 129 Ga. 275 (58 S. E. 839).

In Williams v. Crosby, 118 Ga. 296 (45 S. E. 282), Mr. Justice Lamar said: “In a contest between two parties, both of whom are fit and proper persons, the one having the legal right should prevail. If both are proper parties, but neither has a legal right, the one having the strongest moral claim should prevail. But in every case, regardless of the parties, the welfare of the child is the controlling and important fact. This is not intended to nullify the laws of nature; for in most instances it will be found that the legal right of the parent and the interest of the child are the same. But if through misconduct or other circumstances it appears that the case is exceptional, and that the welfare of the child requires that it should be separated even from its parent, the parens patriae must protect the helpless and the innocent. They are the wards of the court, the hope of the State, and the seed-corn of the future.” This was said in a case involving a controversy over the custody of a child between its parents, who had- been divorced. The judgment in the divorce suit awarded the child to the mother. The court, on the hearing of the habeas corpus proceeding, apparently thought that the judgment in the divorce ease prevented him from entering into the question as to the fitness of the parent or the interest of the child, even on evidence as to these matters since the decree, and the language quoted was used in discussing this ruling.

It will thus be seen that prima facie the right to the custody of an infant is generally in the father, if living; but that this may be resisted on the ground of unfitness for the trust”, or other good cause; and that, in reaching his judgment on a habeas-corpus proceeding involving the custody of the minor child, the presiding judge should award the custody to the person legally entitled thereto, unless it is made to appear that he has lost this right, or that the security, morals, or welfare and interest of the child require another disposition; and that the right of the father should not he disregarded and his child awarded to the custody of one neither the father nor mother (even though a grandparent) save for grave and substantial cause. The rights of nature are not to be lightly overridden on the one hand, nor is the welfare of the child to be disregarded on the other.

The ease most cited as authority for the discretionary power of the court, and which some of the decisions seem to treat as declaring in favor of an almost arbitrary discretion, is that of Bex v. Delaval, 3 Burr. 1434, in which Lord Mansfield said that “The court is bound, ex debito justitise, to set the infant free from an improper restraint; but they are not bound to deliver them over to any body, nor to give them any privilege. This must be left to their discretion, according to the circumstances that shall appear before them. . . The true rule is, ‘That the court are to judge upon the circumstances of the particular case; and to give their directions accordingly/ ” In that case a girl of eighteen years of age had been debauched by Sir Francis Delaval, and was notoriously his mistress. A writ of habeas corpus was taken for her custody by her father. On the hearing, she did not wish to go home with her father, but declared her attachment for Sir Francis. The learned judge thus decided: “Let the girl therefore be discharged from all restraint, and be at liberty to go where she will. And whoever shall offer to meddle with her, redeundo, let them take notice ‘That they do it at their peril/ ” The report does not show what followed, but presumably she returned to Sir Francis, and her father did not “meddle with her.” One or two observations may be made in regard to that case. While it is unquestionably an authority for the use of discretion, by the court, the remarks of the same- learned judge in Rex v. Wilkes, 4 Burr. 2527, supra, on the subject of the meaning of discretion and its proper use, show clearly that he did not intend by the employment of that term that courts could disregard entirely legal rights, powers, and duties in its exercise. Again, whatever may be the case with persons of full age or who have sufficient discretion to determine their own actions, it could not be held that a court, on. the hearing of a habeas-corpus proceeding for the custody of a child two years of age, could pursue the plan adopted in tlie Delaval case and set it free to go where it pleased. Wrongful custody of children may not be in fact against their consent, but sometimes as they desire. But the1 writ of habeas corpus has come to be treated as a method of determining their proper custody. The wrongful custody of a child, especially one of tender years, who can not in law choose for itself, is considered a sufficient illegal restraint of liberty to authorize the issuance of the writ; and while the wishes of the child may be heard and considered, its immature will is not controlling on the court. When a child of tender years is brought before the court on such a writ, its custody must be determined and awarded to some person. It is different from a grown person who is entitled to his own custody, and who can not lawfully be kept in custody or restraint against his will by another, save in certain exceptional cases, such as that of one arrested for a crime, or confined as a lunatic, or the like. A child is not entitled to its freedom like a grown person. A parent or guardian is entitled to the custody of the child. Our own statutes recognize this distinction, as do also adjudicated cases. See Civil Code, §2502. In such cases, the trial court has a discretion, but in its exercise he must consider the natural rights of the parent, as well as the dictates of humanity and the welfare of the child. In this connection the remarks of Chief Justice Sharkey in his dissenting opinion in Foster v. Alston, 6 How. (Miss.) 472, are worthy of consideration. See also Civil Code, §2453 (which was codified in part from the act of 1845 (Cobb’s Digest, 335) on the subject of awarding a child to its father or mother), §§2461, 2503; Penal Code, §1226; Shaw v. Natchwey, 43 Iowa, 653 ; Brinster v. Compton, 68 Ala. 300 ; State v. Smith, 6 Greenleaf, 462 (20 Am. Dec. 324). Those who may be interested in pursuing the subject further will find discussions of it in Hurd on Habeas Corpus, 462-521; Church on Habeas Corpus (2d ed.), §§423-454; in the opinion, dissenting opinion, and elaborate briefs in Foster v. Alston, 6 How. (Miss.) 406 ; in monographic note to Smith v. State, 20 Am. Dec. 330 ; and in 15 Am. & Eng. Enc. Law (2d ed.), 187, and notes.

There are many cases where infants of tender years have been awarded to the custody of their mothers rather than to that of their fathers. There are also cases where the- court has refused to disturb the custody of grandparents under habeas-corpus proceedings by a parent. It would be useless to cite numerous cases of the one character or the other, and show on what special facts each rested. It may be said that where the mother and the father are both fit and proper persons to have the custody of the child, in a controversy between them (where discretion is somewhat more freely used), the necessity for maternal care or nurture in infancy or early childhood, or the sex of the child, has sometimes been a potent circumstance. In some of the cases the father abandoned his child or relinquished his paternal right to its grandparents or others; in some of them he let the child remain in their entire custody and-charge.for a long period of time, and either he appeared not to be a fit person to rear it, or the facts were such as to show that the welfare of the child required its custody to be left undisturbed. Here the father had the child. The mother instituted proceedings to have it taken from him and delivered to her, under a writ of habeas corpus. The maternal grandmother intervened or appeared' and asked that the custody be given to her. When he started to leave with the child, he was arrested and brought back under a criminal warrant, which is spoken of as being for “abduction,” a somewhat singular proceeding, unless a father has parted with his parental right to the custody of his child. See Hunt v. Hunt, 94 Ga. 257 (21 S. E. 515).

In the light of the foregoing discussion of the principles involved in such cases, let us briefly consider some of the salient facts m the present case bearing on the question between the husband and wife and between the father and the grandmother. It seems to be beyond question that the mother, who was the original applicant for the writ of habeas corpus, is not entitled to the custody of the child, and is not a properly qualified person to have him. When her mother filed her intervention, she alleged that “Your intervenor’s daughter, the above plaintiff, is physically weak and of a nervous temperament, which prevents her administering to her child at all times with the gentleness and tenderness and discretion of which your intervenor feels and believes she herself is capable.” On this intervention the mother of the child signed an acknowledgment of service and added, “Without waiving any of my rights to hereafter be heard for the custody and control of my child, Sam Jones Sloan, as against any right which may be asserted or 'claimed by my husband, B. C. Sloan, in this proceeding, or any other proceeding, I hereby consent for the prayers of my mother’s intervention to be granted.” Thus, while seeking to reserve the privilege of resisting the claims of the father, she practically abandoned any claim to the custody of the child in favor of her mother. In an affidavit filed by Mrs. Jones, the grandmother, as it is set out in the bill of exceptions, she expressly said, that, “if said child should be awarded to her, she pledged her honor to take full and exclusive control of said child, and that said Laura Sloan shall not be allowed to exert any evil influence over said child.” Doubtless this fond grandmother was sincere in making this statement. But the testimony discloses that her daughter was living with her, and evidently intended to continue to do so. If there was any evil influence to be apprehended from the mother, it is difficult to see how the grandmother intended to prevent it in the daily contact of mother and child living together. Clearly, under the pleadings and evidence, the original applicant for the writ was not entitled to the custody of the child.

Next let us1 consider whether the evidence authorized the taking of the child from the father and delivering him to the grandmother. There is no pretence that he had relinquished his parental right by contract; nor is there the slightest intimation that he is a man of vicious, immoral, or dissipated habits. Indeed no attack is made on his character, while the evidence of numerous witnesses who knew him in the places where he had resided shows him to be upright, industrious, a- suitable person to have .the rearing of his child, and capable of earning enough at his vocation to amply supply necessaries. His mother and sisters, who appear to be good people, offer their homes and services in assisting him. The evidence indicates that he was twice broken up in business by the conduct of his wife; that he sent her money in considerable sums during his absence; that he gave up his business, salary, and prospects in the west, where he had established himself, and returned to Georgia at the urgent request of his father-in-law and his wife, in the hope that all differences between them might be reconciled, and he might be with her and his child. His wife’s letters to him, which are partly copied in the statement of facts, are couched in terms which utterly repudiate any idea of fault on his part, and show that she admitted that whatever fault there had been, it was hers. If he did not obtain a position in Cartersville or its vicinity, there is nothing to show-that he could have done so in the vocation for which he was fitted. He did not pay board at the house of his wife’s parents, where she was taken at their instance, and where he also resided at their request. But it is clear that no board was demanded of him; and, whatever may have been the unexpressed thoughts or reasons of Mrs. Jones, he was informed at least once that he was not expected to pay, according to her own testimony.

We appreciate the inalienable love of Mrs. Jones for her daughter, and her affection for her grandchild. We respect her solicitude for her child and her child’s child. It is sad that the evening of her life should be disturbed by the sorrow arising from the discord between her daughter and her son-in-law, and the consequent necessity for determining the custody of their child. But, so far as the evidence discloses, the disaster was not the fault of Sloan. As fond grandmothers sometimes do, she even feels that she has legal rights to the child superior to those of his father. But however tender may be her love for her grandchild, God gave the child to his parents, not to his grandparents. In law the father is entitled to the custody, unless he has forfeited or lost that right, or unless the evidence shows that the interest and welfare of the child require that the custody shall be given to another. He is legally bound for the child’s maintenance. The grandmother is not so. What she does is voluntary. Even a will drawn is revocable, and does not bind the testatrix while in life; though no present intention to revoke it is shown, but rather the contrary.

In addition to what has been said, and aside from the pathos which is inherent in all such cases, three reasons which may possibly have been considered in taking the child from his father and awarding the custody to the grandmother require notice: First, because she loves the grandchild and desires his custody. But surely so likewise does the father. In fact it appears that he was constantly with the child. Second, that she is a woman of considerable means, while he is dependent upon his industry to make a living. But the evidence indicates that he is capable of earning enough to support and care for the child, and he will have the aid of his sister and mother in rearing it. Nor is a difference in worldly circumstances in itself a sufficient ground for depriving a father, the natural guardian of his child, of its custodj^, and awarding it to a third partjr, where he is a fit person to rear it, and able to do so properly. Poverty alone, save perhaps in extreme cases, furnishes no reason to-deprive a parent of his offspring. Moore v. Dozier, 128 Ga. 92 (57 S. E. 110). In Verser v. Ford, 37 Ark. 27, it was said,- that, “As against strangers, the father, however poor and humble, if of good moral character and able to support the child in his own style of life, can not be deprived of the privilege by any one whatever, however brilliant the advantage he may offer.” Under the facts of that case, the trial court declined temporarily to take a female child, nearly three years of age, delicate in health, and whose mother was dead, from the custody of the child’s maternal grandparents,' on application by the father. The ruling was affirmed, but it was said: “Certainly, under the circumstances, if he had been in possession of the child, no chancellor could have found warrant in equity for taking her away to be jalaced under the grandmother’s care.” The third reason to be noticed is because the father is a Catholic, while the grandmother is a Protestant. It does not appear whether the child’s mother is a member of any church. Surely, in a country 'where the fundamental law of the constitution (Civil Code, §§5709, 5710, 6014) guarantees the right of religious freedom and to worship God according to one’s own conscience, it needs no argument to show that this does not furnish a ground for taking a child from the father’s custody and awarding it to another. If it were deemed unfortunate for the daughter of a Protestant evangelist .(which Mr. Jones was) to marry a Roman Catholic, and perhaps become the mother of children by him, there is nothing to slrow that the religious belief and church connection of the prospective husband were not well known before she became his wife. If the intended wife or her parents objected to his faith, it would have been better to raise the objection before her marriage rather than when the father desired the custody of his child. Indeed it does not seem that this played any part in his matrimonial misfortunes, or was ever mentioned to him as an ob- • jection until the custody of his child was involved. Mrs. Jones testified that her grandson (two years old) “had been taught the Protestant faith from'the day he was able to understand anything; that it is not her purpose to criticise Mr. Sloan for his faith, but that, on account of the above facts, and on account of the child’s first impressions being of the Protestant faith, she feels that he should be allowed to be reared in a Protestant home; that Mr. Sloan, as a Catholic, would feel it his duty, enjoined upon him by his religion, to bring the boy up in his faith, and that if he be allowed to have the custody of the child for the first five years of its life, that it will be influenced by the Catholic teaching, and would almost surely become a Catholic.” Mrs. Sloan more tersely stated that she felt it to be her duty to do all-in her power to'prevent the boy from being made a Catholic. But a court can not lawfully take a child away from his father for such a reason.

• It is urged that the courts will not allow the child to be taken out of the jurisdiction. This may sometimes be true, as in eases where the court changes the custody, or perhaps 'in some other cases. But there is no arbitrary rule of law that a father who has and is entitled to the custody of his child can no't be allowed to take him out of the State. Even yet, in his pleadings, he holds out to his wife the opportunity for reconciliation, saying that he desires to rear and educate his own child in his own home, where he may have the privilege of enjoying association with him and of educating and rearing him, “-and there also have the association of his wife, Laura Jones Sloan, should she choose to occupy said home with him, and do her part toward making it a happy home.”

We have given this case careful and painstaking consideration. We appreciate the importance of the issue involved. Cases concerning the custody of children of tender years always demand the utmost care and the most thoughtful consideration on the part of courts. They involve the welfare and best interest of the child. They touch upon the tenderest sentiméhts of human nature. But under the evidence in this case, we have been able to come to but one conclusion, which is that the father was entitled to the custody of his child, and that our brother of the superitar court erred in the judgment which he rendered.

Judgment reversed.

All the Justices concur.