Garrett v. Mahaley

• Decision Date: 05 April 1917
• Docket Number: 8 Div. 953
• Citation: 199 Ala. 606,75 So. 10
• Parties: GARRETT v. MAHALEY.
• Court: Alabama Supreme Court

75 So. 10

199 Ala. 606

GARRETT v. MAHALEY.

8 Div. 953

Supreme Court of Alabama

April 5, 1917

Appeal from Chancery Court, Limestone County; James E. Horton, Jr. Chancellor.

Sarah Garrett petitions for the custody of her daughter Mattie by writ of habeas corpus directed to William Mahaley. The chancellor denied the petition, and petitioner appeals. Affirmed.

Petitioner is an unmarried woman 32 years of age, and has borne four children, of whom the subject of this suit is the youngest. She lives with her father, who is fairly well to do financially, and is able and willing to help petitioner in the nurture and support of her child. Petitioner has no means of her own, but works crops on her father's farm on shares. When the child Mattie was seven years old, she went to live with respondent and his wife, and continued to live with them more than two years, visiting petitioner occasionally during that time. About Christmas, 1915 petitioner went to the home of respondent and took the child away, and in February, 1916, respondent went to the schoolhouse and took her back home with him. Petitioner says that, while she consented for the child to go and live with respondent, she did not give her to him or his wife, nor agree that she could live with them all the time. She denies that respondent is the father of the child. On the other hand, respondent says that petitioner gave the child to him and his wife, and that he is in fact her father. In this claim respondent is supported by the clear preponderance of the evidence. The child says she has been well treated by both her mother and her adopted parents, but expresses a preference to live with the adopted parents. Respondent and his wife have no children of their own, and are ready to regularly adopt Mattie and raise her as their own, and are able to care for her. Testimony was given ore tenus.

W.R Walker and J.B. Holman, Jr., both of Athens, for appellant.

J.G Rankin and W.T. Sanders, both of Athens, for appellee.

SOMERVILLE J.

In awarding the custody of a minor child as between opposing claimants, the dominant consideration is always the welfare of the child. An important, but strictly subsidiary, consideration, is the highly regarded natural rights of a parent, or, secondarily, of a blood relation, or even of a stranger in blood if established in loco parentis.

It has been said in this state that the father of a bastard, merely as such, is not entitled to any preference with respect to its custody. Matthews v. Hobbs, 51 Ala. 210. In that case, however, the contest was between the putative father and the maternal grandmother, the mother being deceased. But, as against a stranger in blood, most, if not all, of the courts accord preferential rights to the putative father, as being in harmony with nature, and for the best interests of the child. Pote's Appeal, 106 Pa. 574, 51 Am.Rep. 540; Aycock v. Hampton, 84 Miss. 204, 36 So. 245, 105 Am.St.Rep. 424, 65 L.R.A. 689; Barela v. Roberts, 34 Tex. 554; Moritz v. Garnhart, 7 Watts (Pa.) 302, 32 Am.Dec. 762; State v. Nestaval, 72 Minn. 415, 75 N.W. 725; 2 Kent's Com. 178; 7 Corp.Jur. 955. These authorities, indeed, affirm that the putative father is entitled to the bastard's custody as against any person but the mother.

We are satisfied from the evidence before us that respondent is the father of this child, and the contest must therefore be treated as one between the putative father and the mother, in which the mother has prima facie the superior right of custody.

We are satisfied from the evidence also that petitioner "gave" the child to respondent to be raised by him and his wife in their home. Such a gift, though fully executed, is of course not binding upon the mother in the same sense that an executed gift of property would be binding; nor, as to the child, is such a gift binding at all. Marshall v. Reams, 32 Fla. 449, 14 So. 95, 37...