In Re Gary

OPINION By SKEEL, J. This appeal comes to this court on questions of law from a judgment entered for the relator after trial in the Court of Common Pleas of Cuyahoga County. The action is in Habeas Corpus. The relator is the mother of Charles Alfred Gary, an infant, now about four years of age. The respondent was the wife of Andy Gary, now deceased, who was the brother of the relator. The child was born in Hayneville, Alabama. Shortly after the birth of the child, Andy Gary (the uncle) and his wife, Louie Gary (respondent) visited the home of the relator in Alabama, and with the consent of the mother, took possession of the child and has ever since that day retained his physical custody. Some claim that the relator “gave” the child to her deceased brother (which fact, even if so, would give the respondent no legal advantage in this action) was completely denied by the relator when she testified: “Q. Now, this child, without going into a lot of technicalities, did you give your brother possession of this child? *487 “A. No, not — no. He came to me to let the child live— “Q. You’ll have to speak up. I can’t hear you. “A. No, I didn’t give the child to him. He came to me and asked me to let the baby live with him for awhile.” About a year after the baby was brought to Cleveland by relator’s brother, the following writing was delivered to him: “Leola Gary “The mother of Charles Alfred Gary. Native home born in the State of Alabama, Lowndes County, Gardenville. Age 30 — birth 10/24/27. “I hereby according to law adopt this child Charles Alfred Gary to my brother, Andy Gary.” This paper, while written by the relator, is not subscribed by her. There was at least an apparent attempt made to adopt the child by the Uncle, Andy Gary (before his death) and his wife (the respondent), but the effort failed because of the poor health of Andy Gary. This effort is understandable because of the fact that Andy Gary, a post office employee, and his wife, then beyond the age where parenthood could be anticipated, were childless as shown by the record. Andy Gary died at Crile Hospital of Hodgkin’s disease. After his death, the relator came to Cleveland and demanded possession of her child, which demand was refused. This action was then commenced. From the granting of the writ as prayed for, the appellant-respondent alleges the following errors: “1. The Court erred in not considering the welfare of the child. “2. The Court erred in not considering that the mother had abandoned the child. “3. The Court erred in overruling defendant’s motion for a direct finding. “4. The Court erred in overruling defendant on certain objections made by defendant in respect to certain testimony. “5. The verdict of the Court is against the weight of the evidence and is contrary to law. “6. For errors of law appearing in the trial to which objections were made by the defendant at the time. “7. For other errors of law appearing during the process of the trial and apparent on the face of the record.” There is no dispute but that Charles Alfred Gary is the child of the relator. There seems to be no doubt but that he was born out of lawful wedlock as is also true as to one or two of her other children. The principal basis upon which the appellant seeks to reverse the judgment of the trial court is that the interest of the child would be best served by permitting him to remain with the respondent. The evidence rather sharply contrasts the difference between what the home of the mother has to offer in modern conveniences and that of the home of the respondent. The respondent, now a widow, bearing no relationship to the child, who, for that reason, owes no enforceable legal duty of care or support to the child, owns a nine room house with all city conveniences on East 109th Street in the City of Cleveland. The child is there provided with a separate bedroom, is afforded the facilities of the house and good and wholesome care, including all medical *488 services when needed. The respondent has an income from pensions, house rent and her services as a seamstress of about three hundred dollars a month. On the other hand, the relator lives on a farm in Alabama said to consist of four rooms (the respondent testified there were five rooms, three of which are used as bedrooms), the house being occupied by relator’s father and mother, her uncle and her children, five in number, including the child whose custody is here involved, ranging in age from eleven years to seventeen months. There are no modern facilities and the sleeping accommodations are admittedly somewhat crowded. The relator’s income is entirely derived from the farm. There is, however, no evidence that even suggests that she is an improper person to have custody of her own children or is incapable of providing for their needs. This court is not called upon to decide the issues here presented in the first instance. The trial court, after observing the witness upon the trial of the case, was afforded the opportunity to judge the ability of the relator to carry out her motherly duty under all of the surrounding circumstances. The mother of a bastard child is its natural guardian and as such, has the legal right to its custody and can be held legally and criminally responsible for its care and support. In Vol. 7, O. Jur. 2d, page 472, paragraph 43, the following appears: “A mother is the natural guardian of her bastard child, and as such has the legal right to its custody, care, and control, superior to the right of the father or of any other person. The policy underlying this rule is quite patent, since there is usually doubt as to the identity of the father of a bastard child, but there can be no doubt as to the identity of the mother. The obligation to care for and maintain the bastard child is primarily imposed upon the mother; it therefore seems natural that she should have custody, to enable her adequately to discharge her obligation. The natural love and affection of the mother for the bastard child is normally greater than that of anyone else, so that the best interests of the child will generally be subserved by allowing it to remain in its mother’s custody. The presumption is that its best interests require it to be in the mother’s custody. Therefore, the burden is upon the person disputing the mother’s custody to show why the general rule should not apply.” See Vol. 7, Am. Jur., page 668, paragraph 61, which completely supports the rule as thus stated which rule is supported by the great weight of authority. See also Vol. 30, O. Jur. page 555, paragraph 10. While it is true that the child’s physical comfort might be cared for on what we might call a more complete standard in Cleveland, there is nothing in the record to show that its care under the custody of its mother will be below the standards of the community in which she lives and that such life will be in the least detrimental to its health or proper up-bringing. At least, in Alabama the child will be afforded the privilege of growing up in his family circle and in the company of his brothers and not as the only child in the home of a middle aged widow who bears no relation to him whatever and whose circumstances could easily change so that his bringing up might become a bur *489 den which she cannot be legally compelled to assume. Nor is there any suggestion that being a lonesome child on the streets of a big city will be more likely to his benefit than his growing up with the members of his family on a farm in Alabama. In all events, unless it is shown that she is not a proper person, the rights of the mother must be given due consideration. She might well have agreed to let her brother have the custody of the child and even consented to its adoption by him. But all of the purposes behind cringing the child to Cleveland ended upon his death and the mother is not now to be charged with the abandonment or any other lack of interest in the child’s welfare or to have been guilty of any conduct, under the facts of the case, that now would mitigate against her present right to the custody of her child. Farm hands do not have the ability to take long and frequent trips to visit members of the family and failure to do so is no evidence of lack of interest or the absence of love and affection for one’s child. We certainly cannot say that the judgment of the trial court was contrary to law or against the weight of the evidence. The judgment is, therefore, affirmed. KOVACHY, J, concurs. HURD, PJ, dissents.