Harrist v. Harrist

McCLELLAN, J. Writ of habeas corpus issued, at petition of Dora Harrist, to respondents, who, it is alleged, illegally restrained the child of petitioner. Written return to the writ was promptly made. Motion to strike the return was overruled. Petitioner demurred to the return, and, as shown by formal entry, the demurrer was sustained. There was no traverse of the facts set forth in the return. The entry continues in this language: “Respondents, being allowed to amend their return, declined to do so; and thereupon, the court being of the opinion, from the facts stated in the returns, said Annie Harrist should he awarded to her mother, the said Mrs. Dora. Harrist. * * Then follows a judgment-giving effect to the quoted conclusion. Notwithstanding the record asserts that the demurrers to the return of respondents were sustained, it affirmatively appears therefrom that the facts set forth in the returns were considered by the judge of probate in reaching his conclusion in the premises. So, Ave take it, though the de [659] murrers were sustained, the benefit of the facts alleged in the return was had by the respondents. And it may be here appropriately remarked that demurrer is not the proper method of testing the sufficiency of the return to such a writ. — Hurd’s Habeas Corpus, pp. 254, 255; McGlennan’s Case, 90 Ind. 153; Cunningham’s Case, 25 Ind. 171. The return being undenied (Code 1896, § 4832), it must be taken as true. — Ex parte Hunter, 39 Ala. 560; 9 Ency. Pl. & Pr. 1041. While the court is clothed Avith a sound discretion to grant or refuse relief to a petitioning parent for custody of his or her child, yet that discretion is not exercisable, as a matter of course, in favor of the parent. The interest of the child is a primary consideration, though not always controlling, in determining Avhether the custody assailed shall he disturbed. If the petitiohing parent is reasonably suited and able to maintain and rear the child, the prayer should, in ordinary cases, be granted. But if he or she is unguited to have the custody and direction of the child, or unable to afford it the care and nurture and education reasonably to be expected, then the custody should not be granted the parent. And this latter conclusion is especially sound Avhen it appears that the child is possessed of sufficient judgment to express and manifest a desire to remain Avhere he or she is, Avithout the custody of the parent. — Kirkbride v. Harvey, 139 Ala. 231, 35 South. 848, and authorities there cited. The reporter will summarize the averments of the return. Considering them as confessedly true, and applying the general rule above stated, we are clearly of the opinion, and so hold, that the custody of the child should not haAre been disturbed; and that the contrary conclusion of the judge of probate is erroneous. It follows [660] that the judgment appealed from is reversed, and one is here rendered dismissing the petition. Reversed and rendered. Tyson, C. J., and Dowdell and Anderson, JJ., concur.