Ex Parte Davidge

June 3, 1905. The opinion of the Court was delivered by The petitioner, William M. Davidge, by habeas corpus proceedings, asks this Court to award him the custody of his two infant children, Alicia Hayne Davidge and Robert Stewart Davidge. Mrs. Davidge, the mother of the children, left the home of her husband, in the city of Brooklyn, on May 31, 1904, taking with her the little girl, Alicia, about sixteen months old, and went directly to the home of her father, Theodore B. Hayne, in the city of Greenville, S.C. There the infant, Robert Stewart Davidge, was born on October 12, 1904, and there Mrs. Davidge died October 17, 1904, leaving her infant children to the care of her father, who, as respondent in this proceeding, earnestly maintains that William M. Davidge has forfeited his right as a father *Page 18 to the custody of his children by treatment of their mother in her lifetime so neglectful and cruel as to prove him unfit to be entrusted with their care and education. Upon the establishment of this charge the issue depends. The law on the subject is well settled. 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 its 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. No inflexible rule can be laid down by which unfitness may be determined; each case must be decided on its own peculiar facts, but manifestly it is not sufficient to prove the poverty of the parent and that financial benefit will come to the child from separation, or that the parent has faults of disposition and behavior somewhat unusual and trying. The condition in life or the character and habits of the parent must be shown to be such that provision for the child's ordinary comfort and contentment, or for its intellectual and moral development, cannot be reasonably expected at his hands. With this statement of the law, we proceed to the discussion of the charges against the father of these children, *Page 19 having given them the most anxious consideration, not only because of the importance of the issue, but because of the manifest sincerity with which they have been made. It will be observed that there is no evidence or even imputation of ill-treatment or neglect by the father of his child before the separation of the parents; on the contrary, the petitioner submits affidavits of a number of persons that to her he was affectionate and attentive. The gravest charges of misconduct on the part of the petitioner toward his wife rest upon her written and oral statements to the members of her family. Leaving these out of consideration for the moment, we think the other evidence establishes these facts concerning the petitioner's married life. His wife was a woman of unusual refinement and delicacy of feeling, reared by devoted parents in a home of culture. Accustomed to the brightness and joy of such surroundings, it was a severe strain for her to be subjected to the isolation and loneliness of a Brooklyn flat. Absorbed in his business struggles, the petitioner failed to give her that considerate attention which was her due, and in addition, on the ground of economy, expressed his wish for her mother to leave his home a short time after the birth of her infant. In similar ways he was rude to other members of her family without any reason that has been made to appear to the Court. After Mrs. Davidge left his home and returned to her father, under the advice of counsel in New York, as he alleges, he gave public notice in South Carolina newspapers that she had left his bed and board without cause and that he would not be responsible for her debts. These things offend one's sensibilities and call for contrition and reformation, but after the death of the mother, when her claims cannot be asserted, we cannot reach the judicial conclusion that they should be regarded sufficient to convince the Court that the intellectual and moral development of these children cannot be expected at the hands of the father. It is due to the petitioner to say, in this connection, that he sought a reconciliation and expressed *Page 20 regret for his lack of considerate attention, but unfortunately did not apologize for the publication. It is established beyond all controversy that Mrs. Davidge repeatedly stated that her husband had inflicted physical violence and indignity upon her, and besought her father and other members of her family that her children should never be intrusted to him. Having received these children under such a charge from a sick and dying daughter, we profoundly respect the resolution of the respondent not to surrender them except upon the judgment of the courts of his country. It is now incumbent upon this Court to determine whether the cruelty thus alleged against the petitioner has been established by the preponderance of the evidence, for it will not be denied the burden of establishing such a charge against a father in a proceeding of this kind is on the party who makes it. It will be observed that the charge does not rest on evidence such as would be admissible in an ordinary trial. The witness who makes it is dead, and notwithstanding her very exalted character, the evidence comes to the Court as hearsay without opportunity to the husband to subject it to any legal test whatever. The Court, therefore, has before it on one side the statements of the wife made to members of her family, and on the other the denial of the husband. Even if it could be conceded that the husband's admitted conduct gives color to the charge, all will agree that women of extreme refinement and sensitiveness in the period of great nervous tension before child-birth are sometimes deceived by their own imagination and distress themselves over supposed wrongs, which are either altogether fanciful or greatly exaggerated. Unless allowance is made for the wife's statements made under such circumstances, the husband and other members of the family would often be unjustly condemned. It must be considered also that the petitioner has submitted many affidavits from social and business associates, who testify to his general exemplary character and to his solicitude for his family. We conclude, therefore, the respondent has failed to establish the charge *Page 21 that the petitioner is not a fit person to have the custody of his children. The infant, Robert Stewart Davidge, has been extremely delicate from his birth, and Mrs. Hayne has nurtured him with the most intelligent care, both before and since the death of his mother. It is clear, his health and life would be greatly imperiled by depriving him of her experienced attention. Assuming that the petitioner and his mother, who lives with him, would be as careful and solicitous for his welfare, they would be lacking in knowledge of his peculiar needs. For the present, therefore, the Court declines to interfere with the custody of the infant, Robert Stewart Davidge. The judgment of the Court is, that the respondent, Theodore B. Hayne, restore the infant, Alicia Hayne Davidge, to the custody of her father, and that the petitioner have leave to renew his application for the custody of the infant named by the father Robert Stewart Davidge, and by the mother, Theodore B. Hayne, when he may be advised the change can be made without peril to the said infant, provided such application be made not earlier than one year from this date. Upon petition for rehearing, the following opinion was filed