Cottier v. People , 1895 Ill. App. LEXIS 680 ( 1895 )

Mr. Justice Waterman

delivered the opinion of the Court.

The question primarily here presented, is as to the jurisdiction of the Superior Court to make the order it did.

Appellant’s husband first filed a bill for divorce from her, asking also that the custody of the child taken away and concealed by her twelve years ago, be given to him. She having answered this bill, filed her cross-bill for divorce, asking therein that the custody of said child be given to her and a sufficient sum for its maintenance, and alimony for herself, and also that he be required to pay her a sufficient sum of money for the support of herself and said child during the pendency of the suit.

The custody of the child was thus, by each of the parties litigant, made a subject-matter for adjudication by the court.

The statute, section 13, of chapter 40, gives to the court power to make “ on the application of either party such order concerning the custody and care of the minor children of the parties during the pendency of the suit as may be deemed expedient and for the benefit of the children.”

It is quite evident that without knowledge as to where the child is, with whom and in what manner it is living, the court can not be in a position to exercise with wisdom its dis' cretion as to orders concerning the custody and care of such minor.

When a court acts under this statute, it does what it deems for the benefit of the child or- children. For this purpose it is entitled to, and should know, as to the whereabouts and condition of those for whom it is thus to exercise a discretion, a discretion which it is called upon to exercise before it investigates the merits of the controversy as to a divorce. Bishop on Marriage, Divorce and Separation, Vol. 2, Sec. 1182.

The position of appellant, here taken, is that in divorce proceedings, when the court is called upon and feels bound to discharge its duty in this regard, a parent having spirited an infant away and keeping it hid, may refuse to give any information that will enable the court intelligently to discharge its duty, that he or she may constitute himself or herself the judge of what is best for the minor, excluding the court and the other parent from not only all communication with the child, but putting it beyond the power of the court to make any order, judgment or decree concerning the welfare of the infant, which shall be other than a vain and idle proceeding, save as the parent who alone knows where it is, may will.

In the present case appellant has herself appealed to the court for an order compelling the petitioner to pay to her a sufficient sum for the support of the child during the litigation, yet refuses to allow the court to ascertain if there is a living child such as she claims. She has once asserted that she chloroformed and threw this infant into the Niagara river; she now says that such tale was false, that the child is living, well cared for, ignorant of the existence of its father, and will, she fears, be mentally injured should its parentage be made known to it. She declares that she fears that its father will take it into his custody should he be informed where it is.

If what she asserts in her cross-bill be true, such fear is idle. Courts in divorce proceedings act in respect to the custody of children with a view to their welfare. Wherever this child, if living, may be, whether in Hew York or Illinois, it can not be presumed that any court, in directing as to the custody of this girl, now twelve years of age, would act otherwise than for her well being.

In an experience of many years we have never known the custody of a female child of tender years to be taken from the mother, unless she was shown to be unfit to be trusted with its care. In this controversy the child has rights that are to be considered. It is entitled to the tender consideration and fostering care of each parent; neither has, as against the child, a right to assume to be the final judge as to its welfare and decide that the other shall neither see or hear from the offspring of both. Its right to appeal for parental care, as well as parental love, extends to father and mother alike.

All that appellant says, as to the home which strangers have given and are providing for this child, may be true; a question presented to the court, in determining what is best for this child may be, is her assertion, in this regard, true ? this question she refuses to permit the court to investigate or adjudicate upon; her position is that the court shall not determine Avhat is best for this child; that in this respect she is to be the only judge.

The conduct of appellant was a plain defiance of the authority and power of the court in respect to a matter over which it had full jurisdiction.

It is urged that the order of commitment was unnecessarily severe, being, it is said, an imprisonment for six months. The order is for six months, “unless she shall sooner disclose the whereabouts of the child, Florence, and answer the said interrogatories put to her by the court.”

The court could hardly have done less. Its order is affirmed.