Busbee v. Reese

July 8, 1923. The opinion of the Court was delivered by As the question for determination is not only of grave importance to the immediate parties in interest, but involves the application of legal principles to a phase of the domestic relations that I regard as of the first importance to the good order of society and the welfare of the State, I shall as briefly as possible state the grounds.

The Circuit Judge correctly finds:

"From the testimony it appears that there is little difference in the financial and social standing of the contesting parties. All appear to be respectable and law abiding, as well as able to support the child."

There is no evidence satisfactorily tending to establish that the petitioner is an unfit and unsuitable person to be intrusted with the custody and rearing of his own offspring, and no such finding is made by the Circuit Judge. The evidence on the contrary tends to establish, not only that the petitioner is a good man and a good citizen, but that his conduct with respect to the care and custody of this infant is open to no valid criticism. The testimony tended to establish that the petitioner had married Kittie Reese, the daughter of Mrs. Susie Reese, the respondent; that they had had three children, the youngest being the male infant here in question; that this child was about three months old when his mother died; that during the last illness of the mother and on her death bed she requested that her husband, the petitioner, allow her mother, Mrs. Reese, to keep the child until its father, Busbee, got in position to take care of it, and then to keep all three of the children together; that the petitioner had attained a position in life where he could take care of the infant, who at the time of his application was over 15 months old; that he had married a second wife who was able and willing to care for the child; that he was making a living for himself and family on a farm which was unincumbered; that he lived near a school and church, of which he was a patron and supporter; that he visited the baby about twice a week up until the time he found it necessary to commence this proceeding, when he discontinued his visits on account of the unpleasantness that had arisen as the result of his claiming the custody of the child; that he had offered to pay Mrs. Reese, the respondent, for any expense she had been put to and for her trouble in caring for the infant.

In the light of the foregoing evidence and of the Circuit Judge's failure to find that the father is in any way an unfit and unsuitable person to be intrusted with the bringing up of his own child, the petitioner's right as father to the custody of his son is a paramount claim against the world. As was said by Mr. Justice Woods in Ex parteDavidge, 72 S.C. 18; 51 S.E., 269:

"Even as against the mother herself, the father is held to have higher claim to the custody of the children, because upon him the law imposes the responsibility of their support and education, and, if in this duty he fails, he not only incurs the penalty of the law, but receives the brand of social disgrace. It is true, if it clearly appear that the interests of the children will be promoted by taking them from either parent and intrusting them to the other, or from both parents and intrusting them to other members of the family, or even to strangers, the Court will exercise its discretion, having regard to the welfare of the children. But none will deny that ordinarily the most valuable possession of a child is the love and care of its parent, and its most sacred right is its right to live under the father's roof. While the welfare and happiness of the child is the main consideration, the parent's right to the love and influence of his children and the happiness they bring to him must be also recognized and considered along with the interests of the child. For a legal tribunal to separate a child from its parent is, therefore, a very strong measure, justified only by convincing proof of the parent's unfitness."

That the foregoing statement correctly announces the law of the land, recognized and applied in numerous decisions of this Court, there can be no doubt. Ex parteReynolds, 73 S.C. 296; 53 S.E., 490; 114 Am. St. Rep., 86; 6 Ann. Cas., 936. Hartley v. Blease, 99 S.C. 92;82 S.E., 991. Ex parte Cannon, 75 S.C. 220; 55 S.E., 325.Ex parte Scurry, 114 S.C. 295; 103 S.E., 534. As between the two parents, I am in entire accord with the modern tendency of the Court to relax the rule as to the paramount right of the father to the custody of the child. In a contest between the parents I incline to the view that their rights should be regarded as coequal and that the question of custody should turn solely upon the issue of fact as to the best interests of the child. But where the question is the right of the father to the custody of his child as against the claim of others, however closely related by ties of kinship, interest, or affection, then the only bar to the father's right which the Courts may properly recognize is that father's incapacity or unfitness, established by clear and convincing proof. In the old Courts of equity, exercising for the crown as parens patriae the prerogative of aiding unfortunate minors through the great seal, the chancellor rarely acted save when property rights were involved. Nevertheless, the sound and wholesome doctrine that the father may forfeit his prior right to the custody of his children by his own misconduct was early recognized. Thus Lord Eldon took away the children of the Duke of Wellesley because of his profligate conduct (Wellesley v.Wellesley, 2 Russ. 1), and Shelley was deprived of the custody of his children because he declared himself an atheist (Shelley v. Westbrooke, Jac. 266). The principle applied in those cases and illustrated by those examples, in my judgment, still marks the judicial boundaries within which a Court may safely and wisely deprive a father of the custody and rearing of his own offspring.

This principle of the law that concedes to and vests in the father the paramount right to the custody and upbringing of his children is not only deeply rooted in nature, but is in accord with the canons of revealed religion, and is soundly grounded in those tenets of Christian statesmanship upon which our whole governmental structure rests. It is the necessary corollary of the truth, evolved from the experience of the race in its development through the patriarchal and national stages, that the family is the corner stone of civilization; that it is not simply a device for the maintenance of the species, but is "a school of education as well as an empire of law" in which "the great principles are unfolded upon which all human government rests and society is created in germ"; that the citizen needs to be "moulded as well as controlled," and that "the superlative value" of the family to the State "is found in the combination of influence with authority under which men are trained to the obedience which requires to be enforced." Though the family in our modern society may fail to measure up to that conception of it, so ably expounded by an eminent South Carolina divine of a past generation (Dr. Benj. Morgan Palmer), I am not prepared to concede that such failure may properly be regarded as the hall-mark of progress toward higher and better things. Making all due allowance for the difference between the rearing of a family under modern conditions and in the times of the patriarchs, or even of our immediate forefathers, I cannot subscribe to the doctrine of the modern socialist, communist, or bolshevist that the family as an institution has served its day of usefulness in the evolution of the race, that the old-fashioned home is an anachronism, that parental authority should be delegated to, and parental responsibility assumed by, the State, and that this power should be administered through agencies of State constituted for that purpose. And yet that doctrine — false in principle and pernicious in tendency — is squarely predicated upon the theory of the "child's best interests" — that it is better for the child and for society that his upbringing and training should be committed to experts than that this important task should be left to the uncertain chance of proper discharge by more or less inefficient parents. To argue seriously against the soundness of that doctrine would be an affront to the intelligence of my conferees. Nevertheless, the reasons that impeach its validity are the selfsame reasons that apply squarely to the disposition of this cause.

Here we have a home and a family — just such a home and family, apparently, as have in the past nurtured, disciplined, and trained the type of citizenship that founded and that has preserved this republic — headed by a sturdy American farmer who has successfully begun the fulfillment of that laudable ambition, within which is embraced both his own and the State's highest good, to make a home and to rear his children under his own vine and fig tree. He has as helpmate a second wife, as to whose character and capacity the evidence suggests no question. He has in that home this infant's elder brother and sister of the whole blood and a younger brother or sister of the half blood. To deny petitioner's prayer to have this child restored to the father's home, that he may be reared as a member of a reunited family circle, is not only in derogation of the father's legal right to the custody of his own child but, in my judgment, is clearly to sanction what is not for the best interests of the child himself. That it is better for this boy that he should be separated from his father and his brothers and sisters and raised to himself in his grandmother's home, in an atmosphere of indulgent tenderness, is a conclusion that flies in the face of common experience. To deprive the boy of the opportunity to take a child's place in the father's house, where he could grow up in close daily contact and association with brothers and sisters, subject to parental control and disciplined by the "give and take" of the family democracy, is to deprive him of his own best birthright and of his best chance to grow into a good man and useful citizen.

The boy is now more than three years old. For obvious reasons, if he is to be restored to his father's custody at all, that step should not longer be delayed.

The circuit decree is reversed, and the custody of the child awarded to the petitioner.

MESSRS. JUSTICES FRASER and COTHRAN concur.