State ex rel. Collier v. Bell

Gose, J. This is a habeas corpus proceeding, prosecuted by the petitioner to procure the possession of his son, a child ten years of age. The trial court, after a hearing upon the merits, found that the petitioner, the father, was a fit and proper person to have the care and custody of the child, and entered a judgment directing the appellant to deliver the child to him. From this judgment, the appellant prosecutes this appeal. The material facts presented by the record are, that the petitioner’s first wife, a daughter of the appellant, died in childbirth in 1900, leaving four children, the youngest an infant boy over whose custody this suit is waged; that the appellant, the child’s grandmother, lived in the respondent’s home and cared for the children for a period of four years, and until the respondent remarried in July, 1904; that she then left his home and took the boy with her, keeping him until December 26, following, when he was returned to the respondent, who kept him until June 1908. On that date the appellant was allowed to take him, and having refused the demand of respondent, to return him, this action was commenced. The appellant first contends that the respondent in 1900, upon the death of his wife, gave the boy to her. The trial court, however, refused to find that fact, although the appellant made a written request therefor. The evidence upon this question is conflicting, and we do not find it necessary to determine where the truth lies. This court has uniformly held in such cases that the paramount right to the custody of the child is in the parent, and that such right will be denied only where the good of the child demands it. As was said by this court in In re Neff, 20 Wash. 652, 56 Pac. 383: “The parents are the natural guardians and entitled to the care, control [577] and society of their children.” Treating this question in Carey v. Hertel, 37 Wash. 27, 79 Pac. 482, it is said: “He [the father] is not only primarily entitled to her care, but he is a suitable person to be charged therewith, . . . and is entitled to the comfort of her society.” The same view is announced in Lovell v. House of the Good Shepherd, 9 Wash. 419, 37 Pac. 660, 43 Am. St. 839, and Id., 14 Wash. 211, 44 Pac. 253. The paramount right of the parent must, however, in all cases be held subordinate to the welfare of the child. The appellant’s claim that the stepmother is cruel to the child is not supported by the evidence. The fact that the daughter, thirteen years of age, is required to split and carry in wood, feed the chickens, and assist in milking the cow does not show cruelty. Nor does it prove either that the father is wanting in paternal affection, or that he is not a fit or proper person to have the guardianship of the boy. Two children have been born as issue of the second marriage. The family, consisting of six children, the father, and the mother, is supported by the earnings of the father, varying from $100 to $150 per month. The evidence shows that the children are taught the virtues of industry and obedience; that they are properly clothed, and that they have regularly attended school. The testimony of the father relative to the daughter cutting and splitting wood is that she assists him in that work; that he thinks splitting wood is a better occupation for the girl “than running around the streets.” With this view we quite agree. The fact that the father required the children to. assist in the ordinary woi’k in and about the home, and the fact that the stepmother is strict in disciplining the children, do not afford sufficient reasons for awarding the custody of the boy to the grandmother. On the contrary, if it appeared that the father would not teach the boy the habits of industry and obedience, he would not be a proper person to have his care and custody. [578] We think we have sufficiently reviewed the evidence. The judgment is affirmed. Rudkin, C. J., Fullerton, Chadwick, and Morris, JJ., concur.