People ex rel. Broxholm v. Parks

Mr. Justice Gabbert delivered the opinion of the court: On behalf of relator it is contended that motherhood makes a prima facie case for her and entitles her to the custody and control of her child, unless it clearly appears she is not a fit person to be given such custody and control. Relator executed two contracts by which she purported to surrender all care, custody and control of the child to strangers. These contracts may not be strictly binding upon her, but they are proper to consider in determining her intention with respect to the child, as they evince a purpose not to exercise the rights of mother [462] hood. The trial court found as a fact from testimony sufficient to sustain it, that the purpose of relator if she secured control of Winifred, was to turn her over to Mr. Pearse. This fact eliminates the question of the fitness of relator to have the custody of her infant, and the decision of the case must therefore turn entirely upon the application of the rule that in proceedings affecting the custody of an infant the'paramount and controlling question by which the court must be guided is the interests and welfare of the child, or as tersely stated by some authorities, “The welfare of the infant is the polar star by- which the discretion of the court is to be guided.” Wilson, v. Mitchell, 48 Colo. 454, 111 Pac. 21, 30 L. R. A. (N. S.) 507; Breene v. Breene, 51 Colo. 342, 117 Pac. 1000; McKercher v. Green, 13 Colo. App. 270, 58 Pac. 406; Andrino v. Yates, 12 Idaho, 618, 87 Pac. 787. Mr. Pearse is a worthy man, but to give him the custody and control of Winifred, although it is the desire of her mother, means that the child will be intrusted to the care of strangers who would simply be employed for that purpose, while if permitted to remain with respondents she will be cared for and nurtured by persons prompted to discharge these duties by affection for her. They have the means to give her a good education and have evinced the intention to do so. They have excellent reputations in every respect, are eminently proper persons to be intrusted with her custody, and it appears that if left with them, she will be given the same advantages as though she were their own child. In short in their custody and control she will be well cared for and educated, and have that affection bestowed which is necessary to the welfare of a child. True her environments will be different from what they would be should she be taken to England, but this does not establish that her welfare would be better subserved by such a change. In the circumstances of this case we think her interests require that she remain in the custody and control of her foster parents. It is contended on behalf of relator that as respon [463] dents are entirely without right to claim the custody of the child by any action on the part of either Mrs. Pearse .or the mother that they should not be permitted to resist the action. The right of a parent to the custody and control of a child is not an absolute and uncontrollable right, like a right in property, and will never be enforced when it is apparent that its enforcement is against the best interests and happiness of the child. Chapsky v. Wood, 26 Ks. 650. The judgment of the District Court is affirmed. Judgment affirmed. Chibe Justice Musser and Mr. Justice Hill concur.