Cocke v. Hannum

Handy, J., delivered the opinion of the court: This was a writ of habeas corpus issued on the petition of the plaintiff in error, the lawful father of a female child of the age of two and a half years at the time of filing the petition and of about three years at the time of the hearing, seeking to recover possession of the child from her mother, who had been divorced from the plaintiff in error and had subsequently intermarried with the defendant, Hannum. The petition claims the custody of the child on the ground that the father is entitled to the custody of her as his legal right; and because the temper, disposition, and moral character of the mother are such as to render her unfit to have the custody and rearing of the child, and to deprive her of the society which is essential to her proper rearing and education; alleging also that the respondents were about to remove the child beyond the bounds of this State. The return to the writ states, among other things, that the respondent was constrained to separate from the petitioner in the year 1855 by his ill-treatment of her; and that in the year 1856 .-she filed her bill for divorce a vinculo from him, on the ground .of adultery committed by him during their marriage; and upon -due proof of that charge, that a decree was rendered divorcing them from the bonds of matrimony, but making no provision for — 437 — the children of the marriage, and that the child in controversy has since remained in the custody and under the care of her mother, who has nurtured and provided for her; that the mother is fully competent to raise the child in a proper manner, and the charge is denied that she is unfit, in point of character, to have the care and management of the child or that the child will be deprived of proper society in her keeping; and it is averred that the respondents are so situated that the child in their keeping will have the benefit of a.good female school, and of an intelligent and refined society, and that they are able in point of means to educate and support her liberally. They deny that it is their intention to remove from this State, and state that they are permanently settled in Clinton in Hinds county. They allege that the father is an improper person to have charge of the child, because he is insolvent and unable to secure for her the advantages of education and society such as she ought to have; that he was divorced from the respondent Louisa for adultery in 1856, and had also been previous to his marriage to her divorced from a former wife for adultery; that he is very dissipated, given to drunkenness, profaneness, vulgarity, and low associates, so that the best interests of the child require that she should be withheld from his control and from the influence of his example. A great mass of evidence was presented on both sides, touching the character and habits of the father for intemperance, violence, and vulgar conduct, and the charges of adultery against him; and also in relation to the character of the mother for unchaste conduct before her marriage to the petitioner and for high temper and fierceness of disposition and violence towards him during their marriage. And upon the hearing, the j udge decreed' that the child should be restored to the custody of the respondents. From that decree, the case is brought here by the petitioner. The main ground taken as the basis of the claim of the plaintiff in error is, the paramount right of a father to the custody of his lawful child. This right, in the abstract, is fully recognized by the principles of the common law; and it has generally been sanctioned and enforced against the right of the mother, unless the child was so young as to render the care and attention of the mother necessary to its nurture, or unless it was shown — 438 — that the father was -of such a character or in such circumstances as to render it prejudicial to the health, comfort, or morals of the child that it should be in his keeping. Another exception to the father’s right is very generally recognized; and that is, if the claim be asserted upon habeas corpus, and the child be of sufficient age to judge for itself and to make a rational choice where it will go, the child has a right to determine where it will go. These principles are well established by the authorities. Shelford Marr. and Div. 677, 678, and cases there cited. Under the rules held by the adjudicated cases, the infant in this case is neither so young as to render the personal care and attention of the mother indispensable to its health and nurture; nor of sufficient age to choose for itself where to go. And in these respects there appears to be nothing against the legal right of' the father thus far. But it is insisted in behalf of the defendant in error, first, that this general right is modified or lost by operation of the statute, in cases where the parties are divorced, giving to the court power, “in its discretion, to make all orders touching the care, custody, and maintenance of the children, * * * having regard to the circumstances of the parties, and the nature of the case, as may seem equitable and justRev. Code, 334, Art. 17; and, secondly, that the right was forfeited by the adultery of the father, judicially established. Upon the first point, it is very clear that the provision of the statute is incompatible ’with the general legal right of the father, and that, upon granting the divorce, the power of disposing of the custody of the children is conferred upon the court. If then exercised, there could be no question but that it would deprive the father of the custody. Is there any reason why the same result should not take place, whenever after a divorce a court should be called upon to determine the question, in whose keeping would the welfare of the child be best promoted ? We think not. After the divorce, the welfare of the child is the governing consideration. By the misfortune of its parents, it must be deprived of that care and attention from both of them which were due to it, and it generally must be committed to one of them. It would be most unjust both to the child and to the mother that — 439 — it shall he committed to the keeping of an unworthy father, whose misconduct may have caused the divorce from the mother, thereby inflicting a double wrong upon her as well as an injury upon the child. It is, therefore, but just, whenever, after a separation by divorce, the question of the custody of the child arises, to regard the mere legal right of the father as at an end, and to place the child in the custody of the parent best calculated under all the circumstances to promote its welfare, or, if they both be objectionable, even in the keeping of another person. In the State of New York, a statute containing similar provisions to those of our statute has been held to neutralize the rule of the common law in relation to the paramount right of the father after divorce, and to place the parents on an equality as to the future custody of the children. Ahrenfeldt v. Ahrenfeldt, 1 Hoffman Ch. R. 496. The second position is manifestly well founded. The paramount legal right of the father* proceeds on the idea that- he performs his duty to the child and to the marriage relation, and does nothing to forfeit his right. But the mother still has an interest in the child, the fruit of the marriage, and the object of interest and affection alike to both parties. It came into existence, and became the common object of affection and interest to both parents, under an obligation of fidelity to the marriage relation. . If that duty had been performed, the child would have rémained in the keeping of both parties, and no controversy would have taken place. But the father should not be permitted, when his own violation of duty had produced a dissolution of the marriage tie, to deprive the mother of her child to which she was entitled by fidelity to the marriage vow. Hence it has been held that the a’ight of the father is forfeited' by his misconduct; The People v. Chegery, 18 Wend. 637 ; and surely no misconduct on the part of the husband is more flagrant than adultery. It is most just that the consequences of his own guilt should be visited upon him and not upon the injured mother. But the rule which would give him the custody of the child under such circumstances would reward the guilty and punish the innocent'. It would put it in the power of a profligate husband, after having outraged the rights and destroyed the happiness of a wife, to com — 440 — mit the further wrong of depriving her of her child, which might be the only comfort left her. The contrary rule is not only one of justice and humanity to the innocent wife, but it would have a tendency to strengthen that bond of the marriage relation consisting in the love which the father has for his children, and which would induce him to be faithful to his marriage vows in order not to lose the society and comfort of his children. The rule here contended for would be calculated to weaken that bond of union between husband and wife. We therefore think that the claim here set up, founded on the mere legal right of the father, cannot be maintained under the circumstances of this case. The remaining ground upon which the claim of the father is placed involves the question of the fitness of the father and mother respectively to have the custody and nurture of the child. The testimony on this point is voluminous and involves many disagreeable details in reference to the character, conduct, and habits of the parties. Without a particular statement of its details, it is sufficient to say that it shows that the father has been twice divorced for adultery, (one case being at the instance of the mother of the child in controversy,) but is now living happily with a woman of good character and standing, whom he has since married; that he is a regularly graduated physician and in good practice in the best society in his neighborhood, and able to support and educate the child; that the child in his custody would be admitted to the best society in his neighborhood; that he is a man of good temper and intelligence when sober, but is addicted to intemperance, and during the period of such indulgence his conduct is habitually that of a man lost to the decencies and duties of life, given to the grossest vulgarity and obscenity in action and language in the presence of his family and others; and that he admitted that his adulterous conduct was the cause of disagreement and separation and subsequent divorce between him and the mother of this child. The testimony tends to show that the mother was frequently under violent anger and excitement towards the father in broils which took place between them when he was in a state of intoxi — 441 — cation; that she once inflicted a severe blow upon him with a hatchet when he was about to whip her with a horsewhip, and on other occasions prepared and exhibited weapons to protect herself against him; that she was charged with incontinence and lewdness before he married her, but that he considered the charges false and married her with a knowledge of them. It is shown in her behalf that she resides in the town of Clinton, and that her character there is unexceptionable, and she is visited by the most respectable ladies of the town; that she is remarkable for attention to the education and morals of her children, and has another daughter by a former husband, of some fourteen years of age, who has been much with her, and is well raised; that she is remarkable for her fondness and solicitude for her children, and has the benefit of a good female school where she resides at which to educate this child, and where her other daughter is receiving her education; that she lived on terms of affection and harmony with her first husband, and her conduct as a wife and mother were then unexceptionable. From this brief statement of the substance of the testimony in relation to the comparative fitness of the two parties to have the keeping and tuition of a female child of the tender age of about three years, there can be no doubt that the father is positively unfit for the duties. The rule laid down upon the subject is, that “ if there are well-founded apprehensions of the father’s acting with extreme harshness or cruelty, or with gross profligacy or immoral conduct, so that the child would be in danger of contamination) the court will not order the child to be delivered to him.” Shelford, 678. Applying this rule to the case, it is very clear that a father who has been twice divorced for adultery, is addicted to intemperance to such an excess as to be guilty of the grossest vulgarity and obscenity in actions and in language, regardless of the presence of others, male or female, is unfit to have the training of a female of very tender years, and to impart to her by precept and example those principles of virtue and morality, and those feelings of delicacy, and refinement, which are the true excellence of the female character. With such a person, there would be — 442 — every reason.to apprehend damage from the contamination of immoral conduct. On the other hand, whatever objections may once have existed to tbe fitness of the mother by reason of tbe charges against her chastity and amiability — and they come with an ill grace from the husband — tbe testimony is very clear that, in point of respectable standing in the town of her residence at the present time, of fondness for her children and of care and solicitude for their education and morals, no ground for objection now exists against ber. In addition to this, she is tbe mother of tbe child, has reared it thus far from its birth, and her attachment to it must render her a much more fit person to attend to the wants of a child of such tender years than a stranger into whose keeping it must be placed if delivered to tbe father. Upon the whole case, we consider the judgment correct, and it must be affirmed.