Mantooth v. Hopkins

Wood, J., (after stating the facts). The general rule is well understood and well established that the father as the natural guardian of his child is entitled to its custody. The petitioner invokes this rule as it has been recognized in various decisions-of this court, including Bowles v. Dickson, 32 Ark. 96; Verser v. Ford, 37 Ark. 29; Warsaw v. Gimble, 50 Ark. 351; Coulter v. Sypert, 78 Ark. 193; Lipsey v. Battle, 80 Ark. 289; Wafford v. Clark, 82 Ark. 467; Baker v. Durham, 95 Ark. 355; and Waldron v. Childers, 105 Ark. 180. But an examination of the cases will discover that while this general rule is recognized and announced there are exceptions to it and it is varied all the way through the cases according to the circumstances of each particular case as it may arise. For instance, in Ver ser v. Ford, supra, the court, after announcing the general rule, says: “Nevertheless, keeping these leading principles always in view, there are exceptional cases, depending on their - own circumstances, in which the sovereign power of the State as parens patriae, acting through the chancellor, has interfered so far as may be necessary to afford the child reasonable protection. And, further: “Only a few general principles can be taken as guides, subject to which the chancellor must exercise his judgment upon the peculiar circumstances of the case, and act as humanity, respect for the parental. affection, and regard for the infant’s best interests may prompt. All three should be considered; neither ought to be conclusive.” The principles which should control under the facts of the present case are quoted by Judge Battle in rendering the opinion of the court in the case of Coulter v. Sypert, supra, as follows: “When, therefore, the court is asked to lend its aid to put the infant into the custody of the father and to withdraw it from other persons, it will look into all the circumstances and ascertain whether it will be for the real, permanent interest of the infant; and if the infant be of sufficient discretion, it will also consult its personal wishes. It will free it from all undue restraint and endeavor as far as possible to administer conscientious duty with reference to its parental welfare. It is an entire mistake to supppse that a court is at all events bound to deliver over an infant to its father, or that the latter has an absolute vested right in its custody. ’ ’ In Warsaw v. Gimble, supra, the father attempted to obtain the custody of his child from one in whose care it had been placed upon the death of its mother by the pastor of the church to which all the parties belonged. The court, in affirming the judgment of the lower court denying the father the custody of his child under the peculiar circumstances of the case, said: “The circuit judge had the witnesses, the parties and the child before him and was charged with the exercise of a sound discretion in disposing of the question.” In Verser v. Ford, supra, the contest was for the custody and nurture of an infant girl of tender age whose mother died at her birth and who for the first two or three years of her existence had been cared for and kept by the grand parents. The father having again married and being in circumstances to provide and care for the infant sought its custody. The father was a moral man and with means necessary for discharging his parental obligations. In that case, among other things, the court said: ‘ ‘ The child was placed where she is by the father’s assent, and has so remained. By his assent ties have been woven between tbe grandmother and the granddaughter, which he is under strong obligations to respect, and which he ought not to tear assunder. He has shown no urgent necessity for present action and his appeal to the circuit court for aid was not such as to enlist in most hearts any very strong sympathy. ’ ’ While the preferential right of parents as the natural guardians of their children entitling them to their custody, will always be respected and enforced as between them and relatives or strangers to the blood, unless there are some special circumstances calling for a different disposition of them, still whenever these circumstances arise the court will give force to them and will not treat the right of the parent as proprietary and as absolute and uncontrollable. Chapsey v. Wood, 26 Kan. 657; United States v. Green, 3 Masons, 482. Applying the rules that should govern in cases of this kind to the facts of the present record, we are of the opinion that the judgment of the circuit court was correct in denying to the petitioner the custody of his daughter. He had permitted the tenderest ties of affection to grow up between the respondent and the child. The girl had known no other mother during her whole life and she could not have been more tenderly and affectionately nurtured and cared for by her own mother, as the witnesses stated, than she was by respondent. The girl had arrived at the age of discretion and was intelligent and' capable of exercising good judgment as to her own present surroundings and her own future welfare and happiness. She was unwilling to leave the roof-tree of the foster mother whom she loved devotedly to go to the abode of her father, and certainly, considering the best interests of the child, we can not say that such a change would have bettered her condition in life; and when the rights and interest of the father are considered he is not entitled to sunder the tender and sacred relations which he permitted to grow up between the respondent and his daughter. “He is under strong obligations to respect these” relations. Although the custody of the child was by the decree of the court granted to the mother, yet she very soon'thereafter relinquished such custody to respondent. When this was done, petitioner could have applied to the court for the custody of his child. It was his duty to have done so then if he ever intended to do so. But instead, he has waited until the strongest bonds of reciprocal love now bind the foster mother and child, which, to both alike, it would be cruel in the extreme to sever. For twelve years he has permitted the respondent to undergo the expense and trouble of nurturing, supporting and educating his child. He has manifested no concern in relieving respondent of the financial burden, as well as the physical labor and the anxiety that such a charge necessarily entails. During all these years, the paltry sum of ten dollars (less than one dollar per annum), represents the sum total of his material contribution to his daughter. Other than this, not a treasure, not a trinket, nor even “a ribbon for her hair” has little Mary received as a birthday or Christmas token of her father’s remembrance, much less love. Therefore he is entitled to but little consideration from a sentimental viewpoint. He could and should have more assiduously cultivated the affections of his own child and not by indifference and neglect have permitted the tendrils of her young heart to be entwined about respondent as if she were the only parent, and the only one for her to love and obey as such. Now that the child has arrived at the age where she can be useful to petitioner and to his wife and children in the family circle, he is anxious to secure her custody. This doubtless would be expedient for and beneficial to him, but, as we view the evidence, it would be detrimental to the child and a rank injustice to the respondent. Thus far he has manifested no such appreciation of, or affection for his own offspring as to give promise that he would care for her with as much love and solicitude as the foster mother has done and will continue to do. The court was fully warranted in holding him to the promise which the respondent says he made her, when he said, “I don’t aim to take Mary away from you as long as you live.” Petitioner contends that the marriage of respondent to Hopkins has so changed the condition of the child as to warrant him in asking for her custody. But there is nothing in the record to show that the marriage has altered in any manner the relationship between respondent and the child, or changed her condition for the worse. If at any time in the future by reason of this marriage, or for any other cause, the circumstances make it necessary for petitioner to apply for the custody of his daughter, nothing said herein will bar him from that privilege. The judgment is therefore affirmed.