Stanford v. Gray

McGARTY, J. (after stating the facts as above). The first question presented by this appeal is: D'id the court err in deciding that the relinquishment executed by Belle Hansen September 12, 1910, which is set forth in the foregoing statement of facts, was not a bar to her right to recover the child? Respondents contend: (1) That contracts by which a parent seeks to transfer and surrender the custody of his infant child to another •are void as against public policy; and (2) that, assuming, for the purposes of this ease, contracts of this kind, when fairly and voluntarily entered into, are binding between the parties, the facts and circumstances surrounding the execution of the contract in question render it invalid. 1 There are some authorities which hold that a contract made by a parent in which he surrenders the care, control, and custody of his minor child to another is void as against public policy. The great weight of authority, however, sustains the position of appellants that a parent may by contract legally transfer and surrender his infant child into the custody of another where the interest of the child is not prejudiced by the transaction, and in all controversies arising respecting the custody of the child after such transfer and surrender have been made, the paramount consideration — the question of controlling importance — is the interest, welfare, and happiness of the child. In other words, while contracts of this kind, fairly and voluntarily ■entered into, are valid as between the parties, they will not be enforced to the detriment of the child. The earliest case on this question to which our attention has been called is Matter of McDowle, 8 Johns. (N. Y.) 328. In that case -.an indenture of apprenticeship was executed by the parent — 236 — but not in. compliance with, tbe statute. Tbe parent, claiming that tbe indenture was therefore void, sued out a writ of habeas corpus to regain tbe custody of tbe infant. Tbe court said: “There is nothing before the court to show any improper treatment of the infant, nor that the party to whom the father intended to bind him has not hitherto faithfully performed the stipulations of the indenture. This is not a case then in which the father has, any equity, or any right to complain. He may be bound still by the.covenants in the indenture, though the infant is not.” In tbe case of Curtis v. Curtis, 5 Gray (Mass.) 537, tbe' court said: “We are relieved from the necessity of going into the question,, how far the indenture is valid and binding upon the minor under the-laws of Connecticut. The only question is, how far it affects the mother’s rights. And the court are all of the opinion that, so far-as the rights of the mother are concerned, she has relinquished them, by this instrument, which operates either as a contract or an estoppel — and it is immaterial which — to prevent her from now-setting up her rights. If the child should object, we should be' obliged to regard the provisions of the indenture with greater care*, and ascertain its legal force and effect in Connecticut, where it was. made, and in which state apparently the parties had their domicile.’” In tbe case of Legate v. Legate, 87 Tex. 248, 28 S. W. 281, tbe court, in tbe course of a well-considered opinion, says: “The right of the parent or the state to surround the child with proper influences is of a governmental nature; while the right of' the child to be surrounded by such influences as will best promote-its physical, mental, and moral development is an inherent right,, of which, when once acquired, it cannot be lawfully deprived. Ordinarily the law presumes that the best interest of the child will' be subserved by allowing it to remain in the custody of the parents,, no matter how poor and humble they may be, though wealth and worldly advancement may be offered in the home • of another. Where, however, a parent, by writing or otherwise, has voluntarily-transferred and delivered his minor child into the custody and under the control of another, as in the case at bar, and then seeks to-recover possession of the child by writ of hateas corpus, such parent is invoking the exercise of the equitable discretion of the court to disrupt private domestic relations which he has voluntarily237 brought about, and the court will not grant the relief, unless up-ion a bearing of all the facts it is of the opinion that the best interests of the child would be promoted thereby. It is sometimes said that such a voluntary transfer is ‘void,’ or that it is ‘contrary to public policy;’ but the cases using such language show that it is not used in an absolute sense, but in the sense that such transfer is no impediment to the action of the court in determining what is best for the interest of the Child. The law does not prohibit such a transfer, but, on the contrary, allows the child to reap the benefit thereof when it is to its interest so to do.” To the same effect are tbe following cases: Hohenadel v. Steele, 237 Ill. 229, 86 N. E. 719; Dumain et ux. v. Gwynne, 10 Allen (Mass.) 270; Bonnett v. Bonnett, 61 Iowa., 199, 16 N. W. 91, 47 Am. Rep. 810; Carpenter v. Carpenter, 119 Mich. 167, 77 N. W. 703; Miller v. Miller, 123 Iowa, 165, 98 N. W. 631; Anderson v. Young, 54 S. C. 388., 32 S. E. 448, 44 L. R. A. 277; Lamar v. Harris, 117 Ga. 993, 44 S. E. 866; Carter v. Brett, 116 Ga. 114, 42 S. E. 348; Fletcher v. Hickman, 50 W. Va. 244, 40 S. E. 371, 55 L. R. A. 896, 88 Am. St. Rep. 862; Clark v. Bayer, 32 Ohio St. 299, 30 Am. Rep. 593. Moreover, we have a statute wbicb recognizes the validity of contracts of this character. Comp. Laws 1907, sec. 720x27 provides: “No parent or guardian or other person who, by instrument in writing, surrenders or has surrendered heretofore, the custody of a child to any children’s aid society or institution, shall thereafter, contrary to. the terms of such instruments, be entitled to the custody or control or authority over, or any right to interfere with, any such shild, and these same conditions shall prevail where the child is or has been delivered to the children’s aid society or institution by the action of any proper court.” The second paragraph, or subdivision, of section 720x23 of the same act, is as follows: “ ‘Institutions’ shall mean any building, or buildings, public or private, under the control of a competent board of managers, and used as a home or place of detention, correction, or punishment for delinquent or dependent children.” The trial court found, and the finding is supported by the evidence, that: — 238 — “Said Children’s Home Society . . . was a corporation duly organized under the laws of the State of California, for the purpose of taking possession of and finding homes for abandoned children, and was an institution holding and possessing private buildings at various places in California under the control of a competent board of managers, used as a home or place of detention, correction., or punishment for delinquent or dependent children.” Under the foregoing provisions of the statute a parent may, in this state, in pursuance of an instrument in writing such as the one under consideration, duly executed by him, surrender and forfeit his right to the custody of his infant child. 2 There being no evidence to the contrary, it will be presumed that the law of the State of California relating to the forfeiture of the custody of minor children is the same as the law of this state. (Oak Leather Co. v. Union Bank, 9 Utah, 87, 33 Pac. 246 ; Dignan et al. v. Nelson et al., 26 Utah, 186, 72 Pac. 936.) It therefore necessarily follows that contracts of this kind, fairly and voluntarily entered into, being binding in this state, are presumed to be valid when executed in the State of California. Counsel for respondent, however, vigorously contend that, under the ^peculiar facts of this case, the presumption that the law of California with respect to “the forfeiture of the right of custody and control of minor children” is the same as the laws of the State of Utah, cannot be indulged in. Appellants, “for the purpose of showing the state of the law in . . . California in regard to instruments,” such as the one under consideration, introduced in evidence a portion of the decision in the case of Campbell v. Wright, 130 Cal. 380, 62 Pac. 613, which is as follows: “By the former section the power of the court to appoint guardians is limited to the case of ‘minors who have no guardian legally appointed by will or deed,’ and the same limitation is prescribed by section 243 of the Civil Code, and section 241 therein cited. In the latter section the power of the parent to dispose of the custody of the child by will or deed is expressly recognized, and this must be taken as a recognition of the general right of the parent to dispose of the custody of the child, of which it is but a special example; for it would be unreasonable to suppose that the legislature — 239 — intended to limit or restrict a riglit universally recognized in our own and in all systems of law to the single case provided for, which must therefore he regarded simply as an application of the recognized principle.” It is insisted that, appellants having introduced evidence to show that the state of the law in California is the same as the law of this state, it must be presumed that they introduced all of the law of that state relating to this particular subject. The portion of the decision in the case of Gmnpbell v. Wright, sufra, introduced in evidence, does not purport to contain either in detail or in substance the statute of California, on this matter. Certain sections of the statute are referred to in the opinion and in a measure construed; but, as stated, no part of the statute is incorporated therein. The portion of the decision referred to, no doubt, was put in evidence for the purpose of showing the “state of the law of California” on the question here in controversy as construed by the Supreme Court of that state, and the decision seems to recognize the validity of contracts of the character of the one under consideration. 3 Mrs. Hansen seeks to avoid the contract on the grounds: First, that she executed it under irresistible pressure of circumstances, and that her mind at the time she signed the document was, and for several weeks prior thereto had been, as found by the court, “excited and disordered and, second, that when she executed the relinquishment and delivered the child to the Children’s home Society of California, she understood and believed that she was placing it in that institution temporarily, “for a little while” only, and that she intended after the child had remained' there “for a few weeks” to return for it, take it to the home of her parents where she and her husband were lodging and boarding, and have her husband adopt it. There is absolutely no evidence whatever tending to show that Mrs. Hansen’s mind was either “excited.” or “disordered” at or immediately prior to the time she executed the relinquishment. The only inference of which the evidence is susceptible is that she was in good health and in possession of her faculties when240 she signed the document; and the evidence is all but conclusive that she knew and understood the terms of the relinquishment and intended when she signed it to transfer and permanently surrender the right to the care and control and custody of the child to the Children’s Home Society of California. In her letter to M. J. White (excerpts from which appear in the foregoing statement of facts), written four days before she executed the relinquishment, she expressed a desire to have some one adopt the child “to give him a name and a father.” Eight days after she executed the relinquishment, she again wrote to Mr. White, and, among other things, said: “I told Mrs. Levens I had a home for good for the baby. . . . I think I have done what is right by the baby by adopting him out as I am sure he will have a name and a home.” In another letter that she wrote to Mr. White September 20, 1911, more than four months after she executed the relinquishment, she said, referring to the child, “You took him to adopt.” M. J. White testified that, before Mrs. Hansen executed the relinquishment, he explained the terms of the document to her. On this point he testified, in part, as follows: “On September 12, 1910, she called at my office. She said '. . . she wanted to place the child for adoption. I had a long talk with her, calling to her mind and trying to impress on her the seriousness and importance of giving away her child. ... I handed it (the relinquishment) to her to read, and she held it in her hand. I discussed the provisions of it with her, and the importance of the step¡ she was taking. It is our purpose to prevent a parent from giving away a child if there is any way which it can be kept by the parents, and for that reason I dwelt particularly upon the act she was about to do.” The evidence of Mr. White on this point is corroborated by the testimony of the subscribing witnesses to the relinquishment, both of whom were present and heard what was said on that • occasion by White and Mrs. Hansen. While — 241 — some parts of Mrs. Hansen’s testimony is to the effect that she was ignorant of the terms and conditions contained in the relinquishment when she signed it, yet the statement? made by her in her correspondence with Mr. White, above referred to, we think, is all but conclusive that she did know and understand the terms and conditions of the instrument. The findings of fact made by the court that Mrs. Hansen signed the relinquishment “while acting under sudden impulse and without knowing the full contents of said instrument or its purport and effect,” and that she signed it under an “irresistible pressure of circumstances,” are not supported by the evidence. 4 We now come to the question of whether, under all of the facts and circumstances as disclosed by the record, the social and intellectual training, as well as the future happiness, of the child, would be better promoted by restoring it to the custody of Mrs. Hansen than by leaving it in the care, control and custody of appellants. As we have pointed out, the weight of authority, which of course includes the better reasoned eases, holds that, where a parent in writing voluntarily relinquishes and surrenders the custody of his infant child to the custody of another, he can not recover the custody of the child in his own right; and, where the parent in such case comes before the court seeking to recover the custody of the child the burden is on him to show, not on his own behalf, but on behalf of the child, that, it is not receiving the proper care, or that its physical, moral, and intellectual training is not what it should be. The right, therefore, of a parent in such case to the custody of the •child, does not depend altogether on the question of whether he is a suitable person to have the care and custody of the child as counsel for respondent seem to contend. Tested by the foregoing rule, which we think is a wholesome one, do the facts in the case support the decree of the court? We think not. The court found, and the finding is supported by the evidence, that appellants, ever since the child1 was given into their custody, have “kept, maintained, nursed, and — 242 — supported bim with tbe utmost care and tenderness and bave formed a deep' attachment and affection for bim and are desirous of continuing to support and educate bim, . . . and are amply able to maintain, educate, and support said child, and are in all respects fit andi suitable persons to adopt bim and to bave bis custody and control.” We do not wish to be understood as bolding, or even intimating, that tbe Hansens are unsuitable persons to bave tbe care and custody of tbe child in question. What we do bold is that, Mrs. Hansen having voluntarily relinquished and surrendered her right to tbe care and custody of tbe child, tbe burden is on her to show that tbe parties who acquired tbe custody of •the child by virtue and in pursuance of tbe relinquishment bave in some way been derelict in their duty to tbe child, and that it would be better for tbe best interests of tbe child to take it out of their custody and return it to her. This she has wholly failed to do. We bave examined tbe record in this case with more than ordinary care and are of tbe opinion that tbe only reasonable inference which can be drawn from tbe evidence — in fact, tbe only inference permissible — is that tbe interest and welfare of tbe child would be best promoted by leaving it in tbe care and custody of appellants. Tbe judgment is reversed, with directions to tbe trial court to modify tbe findings heretofore made and filed in tbe cause, vacate tbe decree, and to make findings and enter a decree in accordance with the views herein expressed. Appellants to recover costs. .