Fonts v. Pierce

• Court: Iowa Supreme Court
• Writing for the Court: SEEVERS
• Citation: Fonts v. Pierce, 64 Iowa 71, 19 N.W. 854 (Iowa 1884)
• Decision Date: 09 June 1884
• Parties: FONTS v. PIERCE.

64 Iowa 71

19 N.W. 854

FONTS

v.PIERCE.

Supreme Court of Iowa.

Filed June 9, 1884.

Appeal from an order of the Hon. GEORGE W. RUDDICK, judge of the Twelfth judicial district.

Upon the application of the plaintiff a writ of habeas corpus was issued for the purpose of testing the validity of the detention of a child in the custody of the defendant. There was a return to the writ, and, at the hearing, the child was remanded to the care and custody of the defendant. The plaintiff appeals.T. S. Wilson and McCeney & O'Donnell, for appellant.

Gibson & Dawson, for appellee.

SEEVERS, J.

The child in question is eight years old, and the wife of the plaintiff is its mother. In 1881 Mrs. Fonts was a widow, and the mother of two children, the child Ella being the oldest. Two or three months prior to May, 1881, Ella was placed by her mother in the defendant's custody, and on the second day of that month articles of adoption were duly executed, whereby the defendant became the adopted parent of the child, as he claims, and thereafter she was to be known as Ella Pierce. The articles, however, were not filed for record, or recorded, until the tenth day of April, 1883. After-wards Ella's mother married the plaintiff, and on the twenty-ninth day of February, 1883, she and her husband executed other articles, whereby the plaintiff claims he became Ella's adopted parent. These articles were recorded on the same day they were executed. Evidence was introduced bearing on the question whether the best interest of the child demanded that it should be awarded to the plaintiff, or remanded to the custody of the defendant. No finding of facts was made, but the court held that the child was not restrained of its liberty by the defendant, and remanded her to his custody.

1. It is insisted by counsel for the appellant that the first articles of adoption are void, because of the failure to record them; citing Long v. Hewitt, 44 Iowa, 363;Tyler v. Reynolds, 53 Iowa, 146;S. C. 4 N. W. REP. 902; and Shearer v. Weaver, 56 Iowa, 578;S. C. 9 N. W. REP. 907. It was held in these cases that a child could not inherit from its adopted parent unless the articles of adoption had been executed and recorded prior to the death of such parent. These decisions are based on the express language of the statute. But suppose the articles of adoption were duly executed ten years, and only recorded six months, prior to the death of the parent by adoption; could the child inherit? If it could, then it would seem to follow that the failure to record the articles would render them voidable only. If this is so, can both the natural and adopting parent avoid them. Conceding both may, what are they required to do? Can the natural parent, by executing articles of adoption to or with another person, without more, avoid the prior articles? Does the adopting parent acquire any rights, although there has been a failure to record the articles? We do not deem it necessary to determine any of the questions suggested, but, as at present advised, we should hesitate long before holding that the child Ella cannot inherit from the defendant. But conceding, for the purposes of this case, that the plaintiff is legally the adopted parent of the child, it does not necessarily follow that he is entitled to her custody. His rights may be equal to, but clearly they are no greater than, those of the natural parent, and it has been held that such parent is not, under all circumstances, entitled to the custody of his child. Drumb v. Keen, 47 Iowa, 435.

2. The modern doctrine undoubtedly is, in controversies of this character, that the controlling consideration is the interest of the child, and it has been further held that this proceeding is at law, and that neither party is entitled to a...