Coffee v. Black

• Decision Date: 18 November 1866
• Citation: 82 Va. 567
• Parties: COFFEE AND WIFE v. BLACK.
• Court: Virginia Supreme Court

82 Va. 567

COFFEE AND WIFE v. BLACK.

Supreme Court of Appeals of Virginia.

November 18, 1866

On an application for a writ of habeas corpus by a father for the custody of his infant child, the question will not be viewed in the light of the father's legal rights, but with reference to the welfare of the infant.

Error to judgment of circuit court of city of Lynchburg, rendered 14th May, 1885, upon proceedings by writ of habeas corpus sued out by Daniel A. Black against W. W. Coffee and Sarah E. Coffee, his wife, whereby it was decided that " Mary E. Black is illegally detained in the custody of the said defendants," and it was ordered that " they do deliver up to the plaintiff his infant child, the said Mary E. Black." From this judgment Coffee and wife obtained a writ of error and supersedeas from one of the judges of this court. Opinion states the case.

A. H Burroughs, for the plaintiffs in error.

W. W Larkin, for the defendant in error.

OPINION

LACY J.

In December, 1882, D. A. Black and his wife, the wife being then ill of a disease of which she died January 15, 1883 delivered over their infant child Mary to the appellants, as is claimed by them, to be by them adopted and cared for as their own, they being childless, and Mrs. Coffee being the sister of Mrs. Black, where the child has remained ever since.

This infant, who is the subject of this controversy, was, at the time of the transfer, three years old, and is now about seven years old. The child has been well and tenderly cared for by her aunt and her husband, and is contented and happy. Black has four other small children, and his sister-in-law lives with him, and the intercourse between the familes has remained pleasant and affectionate in character, until upon a recent misunderstanding, growing out of a trivial circumstance, the father became angered and demanded the return of his little girl. His other children have been in the habit of visiting their little sister, and on one occasion, arriving when their aunt was absent and the little girl gone to bed, they were not admitted by a person in charge. Upon demand for the child, the aunt first remonstrated, and then refused to deliver up the child whereupon the father applied for the writ of habeas corpus, to obtain the custody of the child; and, upon the hearing, the child was ordered to the custody of the father by the circuit court; from which order this appeal is taken.

The father is entitled to the custody of his child, when he is a fit and suitable person, and when he has not voluntarily relinquished it. But in cases where the father has voluntarily relinquished the custody of an infant, to a female, or other relatives, or suitable persons, and the child has grown and expanded within the new life around her and become aliened, or has grown up a stranger to the paternal home, upon application to the court to interpose to break up formed ties of affection and domestic love, the question is no longer to be viewed in the light of the father's legal rights, they having been abandoned by him, but in the light of a cautious regard for the happiness and welfare of the infant. As has been said in such case, " the welfare of the infant, and not the rights of the parent, is the polar star by which the discretion of the court is guided in awarding the custody of the infant." Tyler on Infancy, 283. Another writer states it thus: " As a general rule, the writ of habeas corpus, and all action upon it, are governed by the judicial discretion of the court, in directing which, all the circumstances are to be considered. In the case of a child of tender years, the good of the child is to be regarded as the prominent consideration." Hurd on Habeas Corpus, 482. This court said, in the case of Armstrong v. Stone, 9 Gratt. 102, " when the person entitled, has not the custody, and is seeking to be restored to it, the court will exercise its discretion according to the facts, consulting the wishes of the minor if of years of discretion, if not, exercising its own judgment as to what will be best calculated to promote the interests of the child, having due regard to the legal rights of the party claiming the custody." Opinion of Allen, J., p. 107. " The law in this country, at...