Aycock v. Hampton

Whitfield, C. J., delivered the opinion of the court. The putative father was entitled to the custody of his illegitimate daughter, about eleven or twelve years old. There is nothing to show that he was an improper person to have the custody of his child. The learned court below seems to have [208] proceeded on the idea that a putative father had no legal standing to maintain a writ of habeas corpus. The case of Moritz v. Garnhart, 32 Am. Dec., 763, states the true rule. The court say: “Though a bastard be not looked upon as a child for any civil purpose, the ties of nature are respected in regard to its maintenance. The putative father, though not legally related to it, is so far considered its natural guardian as to be entitled to the custody of it. In The King v. Cornforth, 2 Stra., 1162, the court granted an information for the abduction of a natural daughter from the protection of her putative father, thinking that a bastard is within the 4 and 5 Ph. & M., c. 8, which punishes the taking away of any maid or unmarried woman child from the possession of the father, mother, or person having the governance of it. Between the father and the mother, however, the latter seems to have the prior claim. Ex parte Knewe, 1 N. R., 148. In Rex v. Cornfoot, 1 Boot’s Poor Laws, 465, it was held that a putative father has a natural right to the care and education of his illegitimate child; and in Newland v. Osman, Id. 466, he was allowed to take it from the parish and maintain it. It may be safely said, then, that the law recognizes the rights of putative paternity for purposes of nurture and education.” Pote’s Appeal, 51 Am. Rep., 540, also lays down the same doctrine, the court there saying: “That the putative father was a proper person to present this petition cannot, we think, be doubted. The putative father of an illegitimate child is entitled to the custody of the child as against all but the mother. If the mother be dead, and the father a suitable person, it shall be taken from the maternal grandparents and delivered to him.” Commonwealth v. Anderson, 1 Ashm., 55. To the same effect are the English , cases: Richards v. Hodges, 2 Saund., 83; Burwell's Case, Ventris, 48; Sherman’s Case, Id. 210; and Newland v. Osman, referred to in Burne’s Justice, 234. In Moritz v. Garnhart, 7 Watts, 302, 32 Am. Dec., 762, it was said that, although a bastard may not be looked upon as a child for any civil purpose, [209] the ties of nature are respected in regard to its maintenance. The putative father, though not legally related to it, is so far considered its natural guardian as to be entitled to the custody of it. The learned Chief Justice Lewis, delivering the opinion of the court, after a full discussion of all the cases, concludes as follows: “It may be .safely said, then, that the law recognizes the rights of putative paternity for purposes of nurture and education.” We may allow large abatements, perhaps, from the estimate which the law makes in respect of the natural tenderness of parents for their own offspring in cases like this, but it is certain that the rule referred to is grounded in that consideration.” The 3 Am. & Eng. Ency. Law [2d ed.], p. 888, states the rule as follows: “The mother, as guardian by nurture, has the right to the custody and control of her bastard child until it shall have attained an age when it can, in contemplation of the law, make an election between father and mother. If, on the other hand, the mother is dead, the father has the right to the custody and control of the child.” The distinction between the right of a bastard to assert its rights for any civil purposes in the courts is a very different one from that which entitles it to have the ties of. nature, as regards its maintenance and nurture, enforced. Reversed and remanded.