Eliason v. Eliason ( 1941 )

The majority point to no evidence of neglect of this child by its mother, and I am unable to find any in the record. The insinuation of misconduct on the part of appellant, in justification for taking the child from her, seems to me to be refuted by the decree itself, wherein it is

"ORDERED, ADJUDGED AND DECREED, that the plaintiff, Oscar J. Eliason, be, and he hereby is, and the defendant Edna Murray Eliason, be, and she hereby is, granted an Interlocutory Decree of Divorce one from the other, and at the end of six months same to be made permanent in the manner and form provided by law on the motion of either party" —

upon the ground of cruelty of each toward the other.

To my mind, the evidence is utterly insufficient to justify taking a three year old child from its mother. The rule laid down and applied in Freeland v. Freeland, 92 Wn. 482,159 P. 698, should be applied here:

"But the fact that the conduct of a mother is not what others might think the most proper is not sufficient of itself to deprive her of the right to the permanent or periodic custody of her minor child. Mother love is a dominant trait in even the weakest of women, and as a general thing, surpasses the paternal affection for the common offspring, and moreover, a child needs a mother's care even more than a father's. For these reasons, courts are loath to deprive the mother of the custody of her children, and will not do so unless it be shown clearly that she is so far an unfit and improper person to be entrusted with such custody as to endanger the welfare of the children."

I dissent.