Greene v. Walker

I concur in the conclusion reached by Mr. Justice MOORE. In view of the opinion handed down therewith in Partch v. Baird,ante, 660, in which I also concurred, I feel impelled to express my views on the general subject involved in both these cases.

Under the statute (3 Comp. Laws 1915, § 13955), —

"The father of the minor, and in case of his decease, the mother, being respectively competent to transact their own business, and otherwise suitable, shall be entitled to the custody of the person of the minor and to the care of his education," etc.

The trial court, in his return to the writ, quoted by Mr. Justice MOORE, said:

"The paramount question under the law in all cases of this character is the welfare of the child. All other considerations must yield to this one."

The application of this rule, as thus broadly stated, cannot but nullify the statute. If a father be a laboring man, it might well be claimed that "the welfare of the child," his "best interests," requires that he should be left in the custody of grandparents, in whose care he had been temporarily placed by the father on the death of the mother, if they be wealthy, and able and willing to give him the benefit of a college education, and surround him with more pleasant environment. But, if the father be honest, moral, affectionate to his children, and his home be surrounded with good influences, and it is apparent that the child will receive kind treatment in it, in my opinion he is entitled to its custody. I think this court has always recognized the prima facie right of the parent, and has never decided against such right, except in cases, like the one under consideration, where the facts justified a denial of it. The rule applied by the trial court was first stated in Corrie v.Corrie, 42 Mich. 509. An extract from that opinion is quoted by Mr. Justice MOORE. In that case, the contest was between the father and the mother, as it was also in Carpenter v.Carpenter, 149 Mich. 138; In re Knott, 162 Mich. 10; Weiss v.Weiss, 174 Mich. 431.

In Re Goldinger, 207 Mich. 99,104, wherein a father sought to obtain the custody of his child from the grandparents, after a consideration of the authorities, Mr. Justice KUHN, speaking for the court, said:

"We are unable to find, however, that this court has ever said, or interpreted the rule to mean, that a father would be deprived of the possession of his child where it clearly appears that he is a man of good habits, honest, and well able to provide for his child."

This holding is followed by a quotation from Weir v. Marley,99 Mo. 484 (12 S.W. 798), in which the question is very ably discussed.

I find nothing in the opinion written by the same Justice inMartin v. Benzie Circuit Judge, 200 Mich. 549, to indicate that he had reached a different conclusion. The latest utterance of this court is found in Re Adams, 214 Mich. 199, wherein Chief Justice STEERE said:

"The law makes him (the father) her guardian by nature and for nurture, prima facie entitled to her care and custody. Bearing in mind also the child's best interests, the courts will primarily 'feel bound to restore the custody where the law places it, with the father, unless in a clear and strong case of unfitness on his part to have such custody.' Commonwealth v.Briggs, 16 Pick. (Mass.) 203."

I have not overlooked the case of In re Gould, 174 Mich. 663. The contest there was between an aunt and grandparents. The opinion of Chief Justice Shaw inPool v. Gott, 14 Law Reporter, 269, is referred to at some length. The holding in that case is thus stated at page 673:

"On a review of the whole case from every angle, it was held that the child should remain in the custody of its grandparents, to whom it was devotedly attached and with whom it preferred to live; the leading principle being that,when the right of the parent is not clear and imperative, thebest interests and happiness of the child must always controlthe decision of the court."

The question of the father's right under the statute, into which so many considerations enter, is always one of fact. I concur with Mr. Justice MOORE in affirming the conclusion reached in this case by the trial judge.

CLARK, C.J., and McDONALD, BIRD, and STEERE, JJ., concurred with SHARPE, J.