Green v. Campbell

CourtSupreme Court of West Virginia
Writing for the CourtHoLt, J
Citation35 W.Va. 698,14 S.E. 212
PartiesGreen. v. Campbell.
Decision Date07 December 1891

14 S.E. 212
35 W.Va.
698

Green.
v.
Campbell.

Supreme Court of Appeals of West Virginia.

Dec. 7, 1891.


Habeas Corpus—Custody op Infant—Rights of Father.

1. 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.

2. 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.

3. 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.

4. 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.

5. 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 requires a change of custody.

6. 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 child's welfare, moral or physical.

(Syllabus by the Court.)

Error to circuit court, Monroe county.

[14 S.E. 213]

Proceedings in habeas corpus by Robert Green against James A. Campbell to obtain custody of a child. Judgment for defendant. Plaintiff brings error. Affirmed.

John W. Harris, for plaintiff in error.

John Osborne, for defendant in error.

HoLt, J. This was a writ of habe as 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 3 1/2 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 unlawfully 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 16 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 21 years of age, a young man well raised and of high moral character. Thus far the grandparents have provided everything for the comfort and well-being of the child, as they are well able to do. Robert Green, the father, is 32 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 father-in-law, and cultivating a part of Campbell's farm as his tenant. He married a second wife in May. 1890, about 22 years of age, who has no children as yet, and who desires to have this child with her and care for it, it being her husband's only child. Robert Green, the plaintiff, 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 daughter, Green relinquished the child to their care and custody, with the express under standing and upon the express condition that it was not after awhile to be taken away from them; that Green assented, with the understanding that he was to see him and...

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75 practice notes
  • Hibbette v. Baines.
    • United States
    • Mississippi Supreme Court
    • December 17, 1900
    ...v. Terry, 59 Ga. 555, S.C. 27 Am. Rep., 399; Stringfellow v. Somerville, 95 Va. 701, S.C. 40 L.R.A. 623; 29 S.E. 685; Green v. Campbell, 35 W.Va. 698, S.C. 14 S.E. 212; Cunningham v. Barnes, 37 W.Va. 746, S.C. 17 S.E. 308. If there was no contract, the ten years' acquiescence in the custody......
  • In re Abbigail Faye B., No. 33716.
    • United States
    • Supreme Court of West Virginia
    • May 23, 2008
    ...but may leave it in such custody as the welfare of the child at the time appears to require." Syllabus point 4, Green v. Campbell, 35 W.Va. 698, 14 S.E. 212 12. "While courts always look to the best interests of the child in controversies concerning his or her custody, such custody should n......
  • Stout v. Massie, No. 10687
    • United States
    • Supreme Court of West Virginia
    • July 1, 1955
    ...by a court of law in habeas corpus proceedings. Pugh v. Pugh, 133 W.Va. 501, 510, 56 S.E.2d 901, 15 A.L.R.2d 424; Green v. Campbell, 35 W.Va. 698, 14 S.E. 212; Rust v. Vanvacter, 9 W.Va. 600. But such proceedings have been treated by this Court according to the principles of The instant pro......
  • Holstein v. Holstein, No. 12685
    • United States
    • Supreme Court of West Virginia
    • March 12, 1968
    ...should be consulted, and due weight should be given to his desires. Hurley v. Hurley, 71 W.Va. 269, 76 S.E. 438; Green v. Campbell, 35 W.Va. 698, 14 S.E. 212, 29 Am.St.Rep. 843; Rust v. Vanvacter, 9 W.Va. 600. Robert was interrogated by the judge who determined that he was a good student an......
  • Request a trial to view additional results
75 cases
  • Hibbette v. Baines.
    • United States
    • Mississippi Supreme Court
    • December 17, 1900
    ...v. Terry, 59 Ga. 555, S.C. 27 Am. Rep., 399; Stringfellow v. Somerville, 95 Va. 701, S.C. 40 L.R.A. 623; 29 S.E. 685; Green v. Campbell, 35 W.Va. 698, S.C. 14 S.E. 212; Cunningham v. Barnes, 37 W.Va. 746, S.C. 17 S.E. 308. If there was no contract, the ten years' acquiescence in the custody......
  • In re Abbigail Faye B., No. 33716.
    • United States
    • Supreme Court of West Virginia
    • May 23, 2008
    ...but may leave it in such custody as the welfare of the child at the time appears to require." Syllabus point 4, Green v. Campbell, 35 W.Va. 698, 14 S.E. 212 12. "While courts always look to the best interests of the child in controversies concerning his or her custody, such custody should n......
  • Stout v. Massie, No. 10687
    • United States
    • Supreme Court of West Virginia
    • July 1, 1955
    ...by a court of law in habeas corpus proceedings. Pugh v. Pugh, 133 W.Va. 501, 510, 56 S.E.2d 901, 15 A.L.R.2d 424; Green v. Campbell, 35 W.Va. 698, 14 S.E. 212; Rust v. Vanvacter, 9 W.Va. 600. But such proceedings have been treated by this Court according to the principles of The instant pro......
  • Holstein v. Holstein, No. 12685
    • United States
    • Supreme Court of West Virginia
    • March 12, 1968
    ...should be consulted, and due weight should be given to his desires. Hurley v. Hurley, 71 W.Va. 269, 76 S.E. 438; Green v. Campbell, 35 W.Va. 698, 14 S.E. 212, 29 Am.St.Rep. 843; Rust v. Vanvacter, 9 W.Va. 600. Robert was interrogated by the judge who determined that he was a good student an......
  • Request a trial to view additional results

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