State Ex Rel. Palmer v. Postlethwaite

Litz, Judge: The relator, Joseph Palmer, seeks by writ of habeas corpus to obtain from respondent, Margaret Postlethwaite, the custody of his eleven year old son, Joseph Carl Palmer, the offspring of a marriage between relator and Dochia Postleth-waite who is a daughter of respondent. By decree of October 19, 1922, the circuit court of Wetzel county granted to relator an absolute divorce from the mother, Dochia Postlethwaite Palmer, and the custody, care and control of the infant.' It seems that the parents separated in 1921, before the institution of the suit for divorce, when the child was taken by the mother to the home of respondent in the town of New Martinsville, where he has since remained under the care and control of the grandmother. The father having remarried in February of this year, thereafter, in *384 August ánade demand on respondent for the custody of the child. The grandmother claims that on or about the date of the divorce decree, the relator relinquished to her bis right of custody, care and control of Joseph Carl, while the father asserts that the child has remained with her under a contract whereby she agreed for a monetary consideration, which he was to pay her semi-annually on the first of January and July, to keep the infant until he w'as in a position to assume direct responsibility for the proper rearing of the child. As evidence of his contention, the relator presents the following paid checks issued by him to the respondent: check, dated February 3, 1921, “for Carl”, $50.00; cheek, dated January 1, 1923, “in full for Carl maintenance”, $26.00; cheek, dated July 1, 1923, $8.00; check, dated January 1, 1924, $18.50; cheek, dated July 1, 1924, “in full C. Palmer”, $30.00; check, dated January 1, 1925, “in full”, $23.50; check, dated July 1, 1925, “in full to date”, $20.00; check, dated January 1, 1926, “C. P.”, $45.00; cheek, dated July 1, 1926, “to date”, $21.00; check, dated January 1, 1927, “C. P.”, $34.25; check, dated July 1, 1927, “in full to date”, $39.50; check, dated January 1, 1928, “in full to date C. P.”, $40.00; check, dated July 1, 1928, $38.00. The relator also files paid.cheeks which he claims were issued by him to John F. Loehr in payment of clothing for Joseph Carl, as follows: cheek, dated January 1, 1923, to John F. Loehr, “for Carl’s clothing”, $25.00; check, dated December 14, 1926, to John F. Loehr, “for Carl’s clothing”, for $10.00; check, dated March 18, 1926, to John F. Loehr, “for Carl’s shoes, etc.”, $5.00. As further proof of the nature of the agreement, the father relies upon the institution of an action (now pending) in the circuit court of Wetzel county by respondent soon after his demand upon her for the custody of the child, in which she seeks to recover judgment against him on a sworn statement of account which follows: “Board or meals furnished Joseph Palmer by plaintiff: 'at his instance and request from September 1, 1922, to Febru *385 ary 1, 1928, inclusive, at $6.00 per week, (281% weeks) .$1,689.00 Board and room rent furnished Carl Palmer (infant son of Joseph Palmer) by plaintiff at the instance and request of Joseph Palmer, from December 1, 1921, to August 20,1928, inclusive, at $8.00 per week (3491/s wks.). 2,796.00 Washing and ironing and caring for Carl Palmer by plaintiff at the instance and request of Joseph Palmer, his father, from December 1, 1921, to August 20, 1928, inclusive, at $2.00 per week. 699.00 Funds .furnished to Carl Palmer by plaintiff at instance and request of Joseph Palmer for hair cuts from December 1, 1921, to August 20, 1928,,inclusive.:... 30.00 School supplies furnished Carl Palmer by plaintiff at instance and request of Joseph Palmer from August 20, 1923, to August 20, 1928. 15.00 $5,229.00” The evidence of numerous witnesses has been filed in behalf of the parties attesting the fitness of each for the trust. Upon consideration of which, as well as the evidence relating to the agreement or understanding between the parties, whereby the care, custody and control of the infant was intrusted to the respondent, the facts, that the father is a substantial business man in the vigor of life, and that the respondent, of advanced years, conducts a boarding house in her home by which, as it is claimed, she furnishes the main support for her family consisting of herself, husband, married son, daughter-in-law, and two grandsons other than Joseph Carl, and the evidence offered by the relator of alleged intemperate habits of some of the members of her family, the court is of opinion that it would be to the interest of the infant to transfer his custody and control to the father. The welfare of the child is the polar star by which the discretion of the court is to be guided. It is, however, a severe blow to the grandmother who has with great patience and tender care reared the child through the most impression *386 able stage of Ms life to be compelled at this time to surrender his custody and control to another; and I, as an individual member of the Court, would be inclined to leave him where he is, particularly in view of his pronounced preference for the grandmother as shown by his intelligent testimony, containing liberal cross-examination, filed on her behalf. “The wishes of children of sufficient capacity to choose for themselves should be given especial consideration when their parents have for a long time voluntarily allowed them to live in the family of another; and the court will make no coercive order in such cases to enforce the mere legal right of the parent to their custody against the manifest inclination and against the reasonable choice of the children to remain where they are — where the sweet tendrils of childhood have first clung to all they know of home. A parent, by transplanting his offspring into another family, and surrendering all care of it for so long a time that its interests and affections attach to the adopted home, thereby seriously impairs his rights to have its custody awarded to him by judicial decree. ’ ’ Church on Habeas Corpus., section 4.47. The custody of the child is awarded to the relator. Writ granted.