Ex parte Boaz

RICE, O. J. — The law regards the father as the head of the family, obliges him to provide for its wants, and commits the children to his charge, in preference to the claims of the mother or any other person. His right to their custody may be forfeited by misconduct, or lost by misfortune. ’When he asserts it by habeas corpus, the court exercises a discretion, for “ the benefit and welfare of the infants,” and may leave them in the custody of the mother or some other person, in preference to the claims of the father. But when, as in the case at bar, the father has the custody of his infant child, and no improper restraint of the infant is established; and the mother asserts a right to its custody, by habeas corpus issued by and returned to a judge of probate, the authorities settle it beyond dispute, that such a judge cannot, in such a case, take the infant from the custody of its father, and give it to the mother. If any improper restraint of the infant itself had been established, the judge of probate - would have been bound to have set the infant free from' such restraint. But nothing of that kind is established; and the action 428 of the judge of probate was in accordance with. law. Rex v. Delaval, 3 Burr. B. 1434; De Manneville v. De Manneville, 10 Vesey, 52; In the Matter of Deming, 10 Johns. 232, 483; Meveein v. The People, 25 Wendell, 64; Matter of McDowles, 8 Johns. 328; Matter of Waldron, 13 ib. 418; Matter of Wollstonecraft, 4 Johns. Ch. Rep. 80; and the numerous authorities cited on the briefs of counsel in the present case. As the judge of probate had no authority to change the custody of the child from its father to its mother, and as his decision is justified by law, this court cannot grant any relief on the application now made; for, in acting upon the application, our authority is merely revisory, or superintending, and cannot be exercised to disturb what has properly been done by the tribunal whose action we are here called on to revise or control. The prayer of the petitioner is denied, at the costs of her next friend.