Guardianship of Tank

Siebeqkee, J. Tbe controversy in tbe proceeding turned upon tbe point of tbe mother’s suitableness to have tbe custody of tbe persons of tbe two children and tbe care of their education. Sec. 3964, Stats. 1898. Tbe natural right of tbe parent to have-the car© and custody of her children is freely conceded, but it is strenuously contended that tbe evidence adduced clearly shows that tbe petitioner’s conduct and character and her condition in life render her unfit and unsuitable to be intrusted with tbe children’s care, custody, and education. In support of this contention reliance is mainly placed upon tbe fact that she was guilty of and confessed to having bad adulterous relations with a person who bad resided at tbe home of her first husband. This was while she was living as bis wife with tbe father of tbe children and about a year and a half before she was divorced from him in 1895. No point was made of this occurrence in tbe divorce proceedings. Tbe facts that petitioner voluntarily communicated her incontinence to her husband shortly after its occurrence, that be condoned her transgression, and that they continued their marital relations for a year and a half before tbe petitioner instituted tbe divorce proceedings, probably explain why no allusion was made to this occurrence in tbe divorce action. In this divorce action she alleged cruel and inhuman treatment as tbe ground for divorce, and tbe court found it to be established. It appeared in this divorce proceeding that petitioner bad no means for supporting tbe children, and that tbe father was a fit and proper person to have their custody, care, and education, and that be was able to support them. No finding was made by tbe court as to petitioner’s fitness or unfitness to have custody of them. Under [633] tbe judgment in this action the children were in the father’s ■care and custody up to the time of his death, July 11, 1905. The claim that petitioner’s unfaithfulness in the respect charged is in itself sufficient ground to render her unsuitable to assume the trust she now seeks cannot be assented to. Such ■conduct must be given proper weight and consideration, and be considered in the light of all the facts and circumstances •of the case, in order to ascertain her present fitness to assume the duties and responsibilities of the care, custody, and education of her children. The following facts are material and bear upon this in•quiry: The unfaithfulness charged occurred over twelve years before this proceeding was commenced. She resided for a year and a half thereafter with her husband as his wife, •and during that time cared for these children. At the expiration of this period she instituted a divorce action, in which her husband appeared, but in which he made no charges of this nature. Two years after her divorce she married Mr. Meyer, her present husband. She has since then lived with him as his wife, and during this marriage she 'has been faithful to her marriage vows, and has performed her duty for the maintenance of a proper and suitable home. From the time of her divorce from the children’s father she visited them while they resided in Milwaukee, and thereafter, by speaking of them to friends and in other ways, manifested a solicitude concerning their welfare, and evinced that she entertained a mother’s interest in and affection for them. ■She now offers to care for them at the expense of herself and husband in her own home, to have them suitably educated in the schools, and to give them such religious instruction as their father desired they should receive. Her husband joins in her request, and pledges proper and adequate support to the children if their mother be appointed their guardian. The referee found that petitioner’s conduct clearly showed ■reformation as to her alleged unchaste disposition and such [634] a reliant probity of character as to remove any claim that she' is now unfit in this respect to assume full charge of the care and education of the children. An examination of the record persuades us that this conclusion is well supported by the evidence and must be approved. Nor do we find that any exception can be sustained to the court’s and the referee’s-finding to the effect that petitioner is possessed of acceptable accomplishments as a housekeeper, and that she and her husband so deport themselves in their family life as to render their home a suitable place for these children to live. Much stress is placed on the father’s request that his-brother be made guardian after his demise. Courts always attach weight to such a request of departed parents, but they are not bound to control the court in determining the question of suitableness between the person so designated and those who sustain the parental relationship to the child. The courts have always recognized the sanctity of the parental relation and.the parent’s right to the care and custody of the children, unless it clearly appears that the parent is an improper and incompetent person to be intrusted with them. In considering this question the welfare of the child is always to be kept in mind. An important consideration in this-respect is that the child should not be subjected to the contempt and derision consequent on having its parent declared to be an unworthy person, unfit to cafe for and nurture him. Applying these considerations to the situation presented by this record, we do not find sufficient evidence to impeach the referee’s and the court’s conclusion to warrant the inference that their judgment is not well founded, and to sustain the claim that the court erred in awarding the guardianship to the mother and in denying the relief prayed for by appellants. By the Gourt. — Order affirmed.