Heinemann's Appeal

Mr. Justice Trunkey delivered the opinion of the court, November 15th 1880. The general rule is, that the father is entitled to the custody of his infant children, that right growing out of his obligation to maintain and educate them. But this is not on account of any absolute right in the father, but for the benefit of the infant, the law presuming it to be for its interest to he under the nurture and care of its natural protector, both for maintenance and education. It is a mistake to suppose that the father has an absolute, vested' right to the 'custody of the infant: United States v. Green, 3 Mason 482. When a court is asked to appoint a guardian of the person of a child, it will investigate the circumstances and act according to a sound discretion, the primary object being the good of the child. 'Under the Act of 1855, Pamph. L. 430, the Orphans’ Court may appoint a guardian for a child, its mother being dead, whose father shall, for any cause, neglect or refuse to provide for it. After a full hearing that court appointed a guardian of the persons of the appellant’s children, which act is alleged to be error. Objection is now made that the petition did not aver specifically any act of commission or omission on the part of Charles Heinemann, to justify a decree taking from him the guardianship of his children; but in the court below he answered, without suggesting a defect, and the case was heard on its merits. The petition sets out enough to bring it within the jurisdiction of the court, being substantially in the words of the statute. These children are aged respectively eight and five years, and are too young to be consulted respecting their guardianship. They have some estate, and it appears to be necessary to support them out of it. That their father is in indigent condition is no reason for depriving him of the care and society of his children, if he is a suitable person to have their custody. Unless in a matter of importance they would likely be injured if in his charge, he should [115] have them, even if unable to maintain and educate them without an allowance from their estates. Yet his inability to support them must be considered with other fact§. It is not suggested that the guardian appointed is in any way unfit for the duties ; nor that he denies the father the right of visiting his children; nor that they are not in a proper place for their education. The appellant alleges that he “found out on the hearing that he was guilty of no particular dereliction of duty as a father, as to the two boys named in the petition, but that his supposed offence ■ consisted in the fact that he had not entire faith in the infallibility of the old school of physicians.” He further says that the height of his offending lies in the fact that he is a convert to the exanthematic method of healing, discovered by Dr. Carl Baunscheidt. If the decree was based on that cause it was a grave mistake, one which we are not satisfied the court committed. An examination of the testimony shows that the appellant’s conduct towards his family must have been the moving cause for the decree. While the evidence reveals that he had no faith in allopathic physicians, it also reveals that he had neglected to call any others for his wife and three children who had died within less than seven months prior to the hearing. He may have been an affectionate husband and father, and have done what he thought was' best, yet according to the evidence they were shamefully neglected as regards medical treatment. His oldest child was the first to die, after having been very sick for several days, but he sent for no physician. For the others he employed no physician at all, except allopathic, and did not call them till death was at the door. He himself practiced the exanthematic treatment on his sick wife and children, although he makes no pretensions as a practising physician, and says, through his counsel, that he is a simple journeyman mechanic. When the physicians were called their directions were disregarded, but probably that made little difference, for they were called so late. There were two practising physicians, .Charles and Leithead, in Pittsburgh; as appellant informs us, who use the mode of treatment he believes in, but he called neither. Doubtless, he thinks, the Baunscheidt panacea as good in his own hand as any other. He has used it on his two surviving children, and should they become ill and he have opportunity, he would be as likely to apply the treatment to them as he was to those which are dead, and as unlikely to call any physician, of any school, qualified for his business. His own testimony shows no change in his mind as to the medical treatment of his family. Nor does' it appear.that he so plies his trade as to be able to provide for his children, but on the contrary, he expects the' guardian of their estates to furnish means for their maintenance. Upon the whole case we are not convinced that the court erred in making the decree. • Decree affirmed, and appeal dismissed at costs of appellant.