Cunningham v. Barnes

• Decision Date: 25 March 1893
• Parties: CUNNINGHAM. v. BARNES et al.
• Court: West Virginia Supreme Court

17 S.E. 308

37 W.Va. 746

CUNNINGHAM.

v.BARNES et al.

Supreme Court of Appeals of West Virginia.

March 25, 1893.

Custody of Infant — Rights of Father—Welfare of CHILD.

1. While it is true that the law regards the father as the natural guardian of his child, and as such, ordinarily, entitled to its custody, yet he may, under certain circumstances, relinquish his right to such custody, and be precluded from reclaiming its possession.

2. The welfare of the infant is the polar star by which the discretion of the court is to be guided; but the legal rights of the parent will be respected, being founded in nature and wisdom, unless they have been transferred or abandoned.

3. When a parent has transferred to another the custody of his infant child, by fair agreement, which has been acted on by such other person, to the manifest interest and welfare of the child, the parent will not be permitted to reclaim the custody of the child, unless he can show that a change of custody will materially promote his chna's welfare, moral and physical. (Syllabus by the Court.)

Error to circuit court, Ritchie county.

Petition for a writ of habeas corpus by Asa L. Cunningham against William Barnes and Ruhama Barnes to obtain the custody of the infant daughter of plaintiff. There was an order directing that the petitioner have custody of the child, and respondents bring error. Reversed.

R. F. Fleming, for plaintiffs in error.

R. H. Freer, for defendant in error.

ENGLISH, P. This was a writ of habeas corpus Issued in vacation by the judge of the fourth judicial circuit of this state, upon the petition of A. L. Cunningham, against William Barnes and Ruhama Barnes, for the purpose of obtaining the custody of his infant daughter, Thursby Cunningham, who, at the time said petition was filed or presented, was seven years of age; the defendants being the grandparents of said infant child. The facts alleged in said petition are that the mother of said infant child, who was a daughter of the defendants, died on the 24th day of April, 1884, when said child was about 15 months old; that, a few days after the death of its mother, It passed into the hands of its said grandparents, where it remained up to about the 8th or 10th of October, 1889, when said grandparents surrendered the custody, control, and care of said child to the petitioner, and that It remained at his home, in Ritchie county, until the night of November 4, 1889, when about 20 men came, about 12 o'clock at night, and took and carried away said child, and one or more of the parties informed petitioner that they were taking said child to deliver her into the custody of said William and Ruhama Barnes; that petitioner was married to his second wife in the month of October, 1886; by whom he had no children, and that said Thursby Cunningham is the only child of petitioner, and that said child was carried away on the night of the 4th of November, as aforesaid, against her will, and against the will of petitioner; that he is able to maintain and educate the child, and bestow upon it such care and attention as is due to it; that he has $1,200 in real estate, besides other property; that he resides in a good community, with a school near at hand, which said child was attending at the time she was carried away; that he has demanded the possession of said child, but has been unable to obtain possession of her, and has probable cause to believe that she is detained without lawful authority. In response to said petition, and by way of return to said writ, the said William and Ruhama Barnes, among other things, stated that their daughter, on her deathbed, and in full possession of all hermental faculties, and in the presence of the petitioner, and with his full consent and concurrence, committed the said child to the custody, care, and charge of respondents, for nurture, maintenance, and education, until said infant should reach her majority, and that immediately after her mother's death, when said child was only 15 1/2 months old, she was brought by the petitioner, in conformity with said understanding and agreement, to the house of respondents, who have since gladly kept and maintained, and most fondly and tenderly cared for, her, and that, when said child was so brought to respondents, It was delivered to them by petitioner with the agreement that it should be kept by them without the interference or control of petitioner; that said child, from that date to the present, had been entirely maintained, clothed, and cared for by respondents, — her father contributing nothing to her support, and taking no control over her, only making her a visit at long intervals, —and that respondents nursed her for seven weeks through a severe attack of fever, and paid her doctor bill, amounting to $30; that they own real estate of the value of $3,500, and personalty to the value of $1,-500, and Intend that said child, at their death, shall share equally with their own children, (of whom they have eight, of which none are now at home, they having married, and left respondents' home, to provide for themselves.) And they allege that petitioner Is the owner of no real estate or personal property whatever; that he is immoral, ill tempered, and incapable of bearing with the shortcomings of children, uses profane language in his family, and from his temperament, habits, nature, and disposition, he is totally unfit to have charge of said child, for the purposes of educating, training, etc. They deny that about the 10th day of October, 1889, they surrendered the control and custody of the infant child to petitioner, or that they in any way consented to part with their possession, care, and custody of said child, but say that petitioner came to their home, and requested them to allow him to take said child to his house upon a visit, expressly promising to return her to respondents within a short time, and upon these promises and agreements, and upon them alone, petitioner was allowed to take said child to his home for a short time, but that said petitioner did not return the said child, as agreed, and refused to return her when requested, and that some person unknown to respondents returned said child to them. Respondents also filed an amended answer, alleging that, previous to the marriage of petitioner to his second wife, there was an agreement between them that said infant child should not be claimed by petitioner, nor taken or received into his family, and that subsequent to said second marriage, said second wife left him, on ac count of his failure to provide for her reasonable and necessary wants, and that afterwards she returned to him; and they allege that petitioner failed to provide for his present wife sufficient food and nourishment, and that she complained to her father about it, and that the health of his present wife is very poor, and she claims to be able to do but little, if any, work. Numerous affidavits and depositions were taken in the case, and witnesses were examined; and on the 14th day of August, 1890, a vacation order was made in said cause, by the judge of the fourth judicial circuit, directing that the petitioner, Asa L. Cunningham, do have the custody, possession, and control of said minor child, Thursby Cunningham, and that she be delivered by the respondents to the said petitioner, Asa L. Cunningham; and the sheriff, if necessary, was directed to execute said order. The respondents excepted to the judgment of the court, and obtained this writ of error.

Now, as to the question whether the allegations contained in the pleadings were supported by the evidence, it is thought proper to call attention to the fact that while A. L. Cunningham, the relator, in his petition, alleges that he is worth some $1,200 of real estate, besides other property, and swears that the allegations contained in said petition are true, yet, when he is placed on the stand as a witness, he admitted and stated on cross-examination that he was not worth anything; that he owned no real estate, and had no personal estate; that he had heretofore sold a piece of land, and had realized about $100. Said Cunningham also states in his testimony that said Ruhama Barnes came out to him on the porch when he was preparing to start away, after the burial of his wife, and begged him to leave the child with her for a week or so, until he could get a place to take it, and took said child from petitioner's arms, and carried it Into the house. It is, however, shown by the testimony of Barbara E. Barnes, a daughter-in-law of the respondents, that she was present shortly after the child's mother died, and heard Ruhama Barnes (defendant) say to plaintiff, if she took the child to keep, as its mother had requested her to do, that she would never give It up to him again. Plaintiff said It was pretty hard, but told her to take it, and went across the room, and told his sister Julia to get its clothes, and put them...