Mitchell v. McElvin , 45 Ga. 558 ( 1872 )

Montgomery, Judge.

This case is controlled by the Act of March 9th, 1866, (Acts of 1865 and 1866, p. 240,) by the Act of December 12th, 1866, (Acts of 1866, p. 156-7,) and by Revised Code, section 1669. So long as the child remained with the mother, after her separation from his father, her husband, and after they were free, she was entitled to control it. Having voluntarily surrendered the custody of the child to its legitimate father, her right to control it ceased, no reason being shown why the father should be deprived of the custody of the child. The Court therefore renders the following judgment:

1. A colored child, born before the 9th day of March, 1866, within what was regarded as a state of wedlock between its parents, while slaves, and who is acknowledged by its father, is the legitimate child of both parents. If the parents separated before that date, and the child remained with the mother, she is entitled to the control of it during minority. But if she voluntarily yield the control to the father, and he takes the child away with him, she cannot afterwards resume the control without the assent of the father, no reason being shown why the father should not retain the custody of the child.

2. If, under such circumstances, the mother is induced to sign articles apprenticing the child to a third person, under representations made to her by that person, that if she did not do so, he would send the child off to another State out of her reach, the articles are void as against the rights of the father, and any master to whom he may have apprenticed the child; and on a writ of habeas corpus sued out at the instance of the person holding the articles from the mother against the father and the master to whom he had apprenticed the child, the child should have been remanded to the custody of the respondents; especially where the mother testifies that she does not desire to withdraw the child from the custody of the father, and that she was induced to sign the articles by the representations made to her.

Judgment reversed.