Hanrahan v. Sears

• Decision Date: 03 March 1903
• Citation: 54 A. 702,72 N.H. 71
• Parties: HANRAHAN v. SEARS.
• Court: New Hampshire Supreme Court

54 A. 702

72 N.H. 71

HANRAHAN

v. SEARS.

Supreme Court of New Hampshire. Sullivan.

March 3, 1903.

Transferred from Superior Court; Peaslee, Judge.

Habeas corpus by John D. Hanrahan, guardian, against Mary T. Sears. Order that defendant deliver plaintiff's ward to him. Transferred from the superior court on defendant's exceptions. Exceptions overruled in part and sustained in part.

The plaintiff is a resident of Vermont. July 26, 1894, he was there appointed guardian of the person and estate of Irene Kelly, an orphan five years old, and there resident. He then placed her in an orphan asylum in Burlington. The following year a brother of the defendant and a second cousin of the ward, with the consent of the guardian, took her to the defendant's home in Claremont N.H., intending (as the defendant says) to support the child and have the care and custody of her during her minority. Since then the defendant has supported and schooled the ward. Before commencing this proceeding the guardian called upon the defendant, intending to take his ward and place her in the family of her married sister in "Vermont. The defendant refused to surrender the child.

The defendant moved to dismiss the action for the reason that the plaintiff has no authority over the person of his ward in this state. The motion was denied, and the defendant excepted. The defendant, conceding that the family in which the guardian proposes to place the child is one which will furnish a suitable home, offered to show that the ward's situation is much better in the defendant's family, and that for several reasons it is for the good of the child that she should remain where she is. The evidence was excluded, subject to exception. An order was made that the defendant deliver the child to the guardian.

Frank H. Brown, for plaintiff.

Burt Chellis and Hermon Holt, for defendant.

WALKER, J. Whatever rights a guardian appointed in another state may have to the custody of his minor ward, living, with his consent, in this state, it is well settled that upon habeas corpus, whether brought by a parent or a guardian, the controlling consideration is the present and prospective welfare of the child. "Ordinarily, a father is entitled to the custody of his minor children, and upon habeas corpus both courts of law and equity have power to award it to him. The application, however, being addressed to the sound discretion of the court, such award will be withheld when it is made clearly to appear that by reason of unfitness in the father for the trust or other causes the permanent interests of the child would be sacrificed by such change of custody, and in deciding upon this question the court will take into consideration the condition of the child with the persons from whose custody it is sought to be taken; its relation to them; the present and prospective provision for its support and welfare, the length of its residence there, and whether with the consent of the father, and the understanding, tacit or otherwise, that it should be permanent; the strength of the ties that had been...