Green v. Campbell.
| Decision Date | 07 December 1891 |
| Citation | 35 W.Va. 698 |
| Court | West Virginia Supreme Court |
| Parties | Green v. Campbell. |
The writ of habeas corpus is the proper remedy for the ascertainment and enforcement of the legal or proper custody of an infant, and is of an equitable nature, applied to this class of cases.
Where the father has not the custody of the child, but is seeking to be restored to such custody, the court will exercise its discretion according to the facts, consulting the wishes of the infant, if of years of discretion, having, however, due regard to the legal rights of the party claiming the custody.
The father is the natural guardian of his infant children, and in the absence of good and sufficient cause shown, is entitled to their custody.
But the court is in no case bound to deliver the child into the custody of any claimant, but may leave it in such custody as the welfare of the child at the time appears to require.
Such order as to the custody of the child is not an unalterable, final judgment, but will last until the child may have the right to nominate its own guardian, or until a material change of circumstances require a change of custody.
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 wellfare 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 child's welfare, moral or physical.
J. W. Harris for plaintiff in error, cited 2 Laws. R. & R. §816 etseq.; 5 Waite Ac. & Def. 41-43; 76 Ga. 479; 14 R. I. 62; 9 W. Va. 600, 614; 43 Am. Rep. 768.
J. Osborne for defendant in error, cited 16 Pick. 203; 5 Binn. 520; 6 How. 406; 2 Sto. 981; 8 Johns. 328; Hurd Hah. Corp. 528; 82 Va. 570; Id. 433.
This was a writ of habeas corpus sued out of the Circuit Court of Monroe county on the 18th day of August, 1890, on petition of Robert Green, the father, against James A. Campbell, the grandfather, to compel the latter to give up to the father the custody of Green's infant son, Thomas Campbell Green, then three and a half years old, as unlawfully detained by the grandfather. The Circuit Court, having heard the evidence of witnesses and the argument of counsel, was of opinion that the infant was not unlaw- fully detained by the grandfather, but, on the contrary, that he was entitled to the custody and control of the infant; and from this decision Green, the father, has brought the case here by appeal.
The facts are as follows: Robert Green, the plaintiff, married the daughter of James A. Campbell, the defendant. Thomas Campbell Green, the infant, the right to, whose custody is the matter here in dispute, is now three and a half years old. His mother died when he was sixteen months old, when he was committed by his father to the care and custody of his grandmother and grandfather, the defendant, who have raised, supported, and had the sole care and custody of the child from that day to this. Campbell, the grandfather, and his wife are sober and industrious, of high moral character, Campbell owning considerable property, including a farm on which he lives, in the county of Monroe, and is well able to take care of the child according to its condition in life. Both these grandparents are devoted to the child, and the child devoted to them, and they have no living children of their own except a son over twenty one years of age, a young man well raised and of high moral character.. Thus far the grandparents have provided everything for the comfort and wellbeing of the child, as they are well able to do. Robert Green, the father, is thirty two years old, sober, industrious, of high character, good family, and capable of providing for and raising his child according to its station in life, is warmly attached to it, and it to him. At the death of his first wife he was living in the same house with his fatherin-law, and cultivating a part of Campbell's farm as his tenant. He married a second wife in May, 1890, about twenty two years of age, who has no children as yet, and who desires to have this child with, her and to care for it, it being her husband's only child. He owns a farm about three miles from Campbell's, on which he now lives with his second wife, of what kind or of what value we are not informed. Thus far there is no controversy about the facts.
The grandparents of the child claim and testify that, upon the death of the mother, Green's first wife and their daugh- ter, Green relinquished the child to their care and custody, with the express understanding and upon the express condition that it was not after awhile to he taken away from them; that Green assented, with the understanding that he was to see his child and take him around with him sometimes, to which Campbell and wife agreed, saying that if anything should happen to them, so that they would not be able to take care of the child, they should expect Green then to take the child and care for it; that Green assented, and upon these terms and conditions they took the child, and have thus far kept and cared for it, as already stated. Campbell and wife are borne out in their statement by another witness. In fact, Green does not deny what was said and clone, but claims that what he meant was that they were to keep the child, but only until such time as he might be in a position to have it properly cared for himself; being then unmarried and without a family.
Mrs. Campbell, the grandmother, during this conversation about keeping the child, told Mr. Green that "she had seen some old people have trouble enough in taking children to raise, and then having to give them up, and that she did not intend to be treated in that way." Green does not deny this, and it is a very strong circumstance tending to confirm their understanding of what took place.
"The father of the minor, if living, and, in the case of his death, the mother, if fit for the trust, shall be entitled to the custody of the person of the minor, and to the care of his education." See section 7, chapter 82, Code (Eel. 1891.) But "the right of the father or mother to the custody of their minor child is not an absolute right to be accorded to them under all circumstances, for it may be denied to either of them, if it appears to the court that the parent, otherwise entitled to this right, is unfit for the trust." State v. Beuff, 29 W. Va. 751 (2 8. E. Rep. 801.) The father is the natural guardian of his infant children, and in the absence of good and sufficient cause, such as ill usage, grossly immoral principles or habits, want of ability, etc., is entitled to their custody, care and education. Rust v. Vanvacter, 9 W. Va. 600; State v. Reiiff, 29 W. Va, 751 (2 S. E. Rep. 801.)
Where the father has not the custody of the child, and is seeking to recover 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. Armstrong v. Stone, 9 Graft. 102, 107.
The courts of equity of this State, in granting divorces, may decree as it shall deem expedient concerning the care, custody, and maintenance of the minor children, * * * and may revise or alter such decree, as the circumstances of the parents and tlie benefit of the children may require see section 11, chapter 64, Code (Ed. 1891) p. 614, showing the discretion given the court in that class of cases but that such discretion is to be guided by considering what will be of benefit to the children rather than by any legal right of the parent; and such is the manifest tendency of the modern doctrine on the subject.
This writ, with so memorable a history, and now so highly prized among English-speaking people everywhere, designed and admirably adapted to secure individual freedom, without which a vital part of the great charter itself might have been but a solemn asseveration of abstract right, has come to be applied to other uses, and, among them, to the ascertainment and enforcement of the right of custody of infant children. Mathews v. Wade, 2 W. Ya. 464. But it is not to be forgotten or overlooked that such use of this writ is of an equitable nature, and therefore the welfare of the infant is the polar star by which the...
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