Nickle v. Burnett

Ethridge, J., delivered the opinion of the court. The appellee filed a bill in the chancery court for the custody, control, and possession of Carl Nickle against his father, Clifton Nickle, in which she alleged that the said child is about nine years of age, and that she had administered to his necessities since he was less than one year old; that she had supported him during this time; that she was the sister of the mother- of the child, the mother dying When the child was about five months of áse; that she had the custody of said child until recently, when Clifton Nickle, the father of the child, forcibly took the child from her; that at the time she took the child in its infancy the said Clifton Nickle by his conduct, acts, and statements assured the relator that she would never be disturbed in the possession of the said child. She also alleged that the father was an unsuitable person to have charge of said child; that he is harsh and profane, and conducts himself in a manner unbecoming a father in the presence of a son; that the relator is able and willing to rear* said child, and prays for the possession, custody, and control of said child. The appellant denied that he had ever abandoned the child, denies that he has not supported him, denies the allegations with reference to his unfitness to have and rear the said child, and denies that he unlawfully took possession of the said child, but admits the allegation that the relator loves the child, and avers that he has the deepest affection for his child, and that it is right and his positive dutv for him to have the custodv and control of the child. The testimony shows that the mother of the child, who is the sister of the appellee and wife of the appel — 63 — lant, died when the child was about five months old; that the mother and father of appellee, the grandmother and grandfather of the child, and the appellee were living together, and that when the child’s mother died the appellant left the child with its aunt, grand father, and grandmother, where it has remained until a few weeks before the institution of the suit. In the meantime the appellant had married, and after his marriage continued until the death of the grandparents to leave the child with them. When the grandfather and grandmother both died the appellant informed the appellee that he was going to take his child home. Appellee fainted, and appellant left the child there for some time thereafter, but, later, when she visited him in the state of Arkansas, he informed her he would not permit her to carry the child back to her home. The appellant has two children by his second wife, and both he and his' wife testified that they desired Carl, the child in this suit, to be reared with his two sisters, and that they were amply able to care for and educate Carl. The proof abundantly shows that appellant and his wife are people of good character and able to care for the child and give him proper attention. Likewise the proof shows that the appellee is a person of good character and ample means to take care of and rear the child. The court in its decree found as a fact that the father had not abandoned the child, and further that it was not shown in the proof that he was unfit or incapable as custodian of the child, but recited that, on account of the ties of affection that now exist between the relator and the child and that the relator was able in every wav to provide a good home and better educational advantages for the child at present, the appellee, the aunt, should have the custody of the child until the July term, 1920, and that the case be set for that — 64 — time for final hearing as to the permanent custody of the child, and granted an appeal from the said decree. The situation presented is one of the tragedies flowing from circumstances of this kind where the affections of the aunt have grown and entwined themselves around the child. We think the proof fails to show any abandonment by the father, and that his leaving the child in the custody of the relator and her mother and father was prompted by feelings of consideration for the child and for the grandparents, and not prompted in any way by any lack of affection or consideration for the child. • ! ■ ' '] “The very tenderness and silence and awful sanctity of that scene — the last interview between the husband and wife — would make it doubly hard for the husband to express any dissent, if he felt it, from her expressed wishes. The cold processes of reason, proper enough as tests of conduct in the ordinary transactions of life, are not the alembic by which to try the reasonableness of conduct in the pain and passion of such an hour.” Hibbette v. Baines, 18 Miss. at page 721, 29 So. at page 87, 51 L. R. A. 839. The present case is very much like the Hibbette v. Baines Case in all of its aspects. The chancellor having found, and necessarily must have found from the evidence, that the father1 had not abandoned the child, and that he was a suitable person to have the custody and control of the child, we think the father had the absolute right to the custody and control of the child. The case is controlled by the Hibbette v. Baines Case, from which we quote the following: “Undoubtedly, the father has primarily, by law as by nature, the right to the custody of his children. This right is not given him solely for his own gratification, but because nature and the law ratifying nature assumes that the author of their being feels for — 65 — them a tenderness which will secure their happiness more certainly than any other tie on earth. Because he is the father, the presumption naturally and legally is that he will love them most, and care for them most wisely. And, as a consequence of this, it is presumed to he for the real interest of the child that it should he in the custody of its father, as against collateral relatives, and he, therefore, who seeks to withhold the custody against the natural and legal presumption, has the burden of showing clearly that the father is an unsuitable person to have the custody of his child, or that, however moral a man may be, he had abandoned his child, contributing nothing to its support, taking no interest in it, and permitting it to remain continuously in the custody of others, substituting such others in his own place so that they stand in loco parentis to the child, and continuing this .condition of affairs for so long a time that the' affections of the child and of the foster parents have become mutually engaged to the extent that a severance of this relationship would surely result in destroying the best interest of the child. In such case as! this the law, and it may well be said nature, too, denies to the father the custody of the child, but the denial is based, not at all on any contract, but entirely and solely upon the situation as above stated, following the abandonment of the child by the father. There is much loose talk in the books about the best interests of the child, and more as to the right of the father. In the effort to escape from the arbitrary rule laid down'by the common law as to the father’s right, the danger is, lest the pendulum swung too far, under modern decisions, the other way; and too much disposition is manifested in some cases to consult not the permanent well-being of the child so much as its immediate enjoyment; to stand, not at the center of the whole, circumference of the facts making up the life of the child from childhood to man — 66 — hood or womanhood, hut in that segment of those facts relating' merely to what will make the child happy at the age he may he when the custody is determined. Parental authority and affection are not antagonistic to filial obedience and happiness. They are reciprocal and correlative.” Hibbette v. Baines, 78 Miss. 703, 704 29 So. 81, 51 L. R. A. 839. The court in that case adopted the law as announced in Weir v. Marley, 99 Mo. 494, 12 S. W. 798, 6 L. R. A. 672, and enters into an elaborate review of the authorities pertaining to such controversies, and then sums up the situation in the following words: “The horizon which bounds the child of ten or thirteen is not the horizon the whole perspective of which is necessary to take into view in determining who shall have the training and character building of ’ children. The vision of the little ones of ten and thirteen sees nothing beyond the horizon bounding those years. They cannot balance the advantages and disadvantages of different custodians, so as to correctly determine which one will guide it best, and fashion it most wisely into, the make-up of perfect manhood and womanhood.” 78 Miss. at page 721, 29 So., at page 87, 51 L. R. A. 839. We think, as against all save the mother, the father has the supreme right to the control and custody of his child unless he has forfeited this right by immoral conduct, or by an abandonment of the child, and that the mere fact that the affections of other people have attached to and grown for the child, and that they may have had temporary custody of it, under circumstances not amounting to abandonment on the part of the parent, does not warrant the court in depriving the parent of his child or children. The proof shows that at the home of the father there are adequate advantages, social, religious, and educational, for a child of this age, and the mere fact that these advantages might be somewhat better at another point does not authorize — 67 — the court to interfere with the parent’s right of custody and control of the child. The judgment of the court will therefore be reversed, and decree entered here in favor of the appellant. Reversed, and decree for appellant.