State ex rel. Bradley v. Lewis

O’NIELL, J. Relator appeals from a judgment rejecting his demand, in habeas corpus proceedings, for possession of his three children, aged, respectively, five years, three years, and six months. Respondents are the maternal grandparents of the children, whose mother is dead. She left the children in the care of her parents, at whose home she died. She had taken refuge there because of her husband’s cruelty; and, when she died, he was accused of having beaten her fatally and was confined in prison. The charge of murder was abandoned for want of sufficient evidence against relator. [1, 2] Being within the draft age, he was put in class 4, because of the dependency of his family; but, when the local board learned that he was not supporting his children, after his wife’s death, he was reclassified and put into class A-1. That was his status, liable to be sent at any time to a training camp, and thence abroad with the American Expeditionary Force, at the time of the trial of this suit. It is said in the brief of his learned counsel that relator has served in the army in France, has returned, and has been discharg [25] ed from the service, since the trial of this case. That may be good cause for another demand in the district court, but we cannot consider statements of fact of which there is no evidence in the record. Though there is some conflict in the testimony on the subject of the alleged neglect of relator’s family, there is a preponderance of evidence against him. The children in this case, particularly the baby and an afflicted one, needed the care of a woman experienced in nursing children. The grandmother, having reared eight children of her own, was willing and able to give these the motherly care which their father was not financially able to procure elsewhere. [3, 4] Under the circumstances, the district judge did well in rejecting relator’s demand. Though a father is, as a matter of right, entitled to the tutorship and possession of his children, his right in that respect is not unquestionable or absolute. When the father is unfit to have possession of his children, whose mother is dead, they become the wards of the court, to be dealt with as abandoned or neglected children. The judgment appealed from is affirmed, at appellant’s cost. MONROE, C. J., not having heard the argument, takes no part.