Hernandez v. Thomas

• Decision Date: 23 November 1905
• Citation: 50 Fla. 522,39 So. 641
• Parties: HERNANDEZ et al. v. THOMAS.
• Court: Florida Supreme Court

39 So. 641

50 Fla. 522

HERNANDEZ et al. v. THOMAS.

Florida Supreme Court, Division B.

November 23, 1905

Appeal from Circuit Court, Duval County; Rhydon M. Call, Judge.

Petition by Eugene C. Hernandez against the St. Mary's Orphan Home and Sarah Ann Thomas. Decree for defendant Thomas, and petitioner and St. Mary's Orphan Home appeal. Reversed.

Syllabus by the Court

SYLLABUS

A will made by the mother of minor children, undertaking to give custody, care, and control of such children to another, is a nullity. Our statute (section 2086, Rev. St. 1892), which is a substantial reproduction of the English statute (St. 12 Car. II, c. 24, s 8), confers upon the father alone the power to appoint a testamentary guardian for his infant child by last will and testament or by deed. Such power is not conferred by our statute upon the mother, and she has no such power or right from the common law, or from any other source.

Agreements by parents for the transfer to others of the custody of their children are against public policy, and are not, in cases circumstanced like the case at bar, enforceable or binding upon the parties.

While in awarding the custody of children, the paramount consideration is the welfare of the child, rather than the technical legal right of the parent, yet the courts should not lightly and without good cause invade the natural right of the parent to the custody, care, and control of his infant child.

The father of infant children, where there is no sufficient cause for depriving him of the right, has the legal right to the custody and control of such children, and has the right to have them educated in any religious faith that he sees proper whose tenents do not inculcate violation of the laws of the land.

As against strangers, the father, however poor and humble, if of good moral character and able to support the child in his own style of life, cannot be deprived of the privilege by any one whatever, however brilliant the advantages he may offer. It is not enough to consider the interest of the child alone and as between father and mother, or other near relative of the child, where sympathies of the tenderest nature may be confidently relied on, the father is generally to be preferred.

COUNSEL

Alex St. Clair Abrams, for appellants.

John L Doggett, for appellee.

On April 21, 1902, the appellant Eugene C Hernandez filed his bill for divorce against his wife, Madge G. Hernandez, upon the statutory ground of willful, obstinate, and continuous desertion for more than a year. The bill, after alleging the desertion by the wife, also alleged that the parties had two children, named Blanche and Edith, the one seven years of age, and the other five years old; and the complainant voluntarily offered and consented in said bill that the custody of said two children should go to the mother until they arrived at the age of 15 years, when the said children were to have the right to select which parent they desired to live with, the father in the meantime to have the right to visit and see them at all reasonable times. The wife answered the bill, admitting the desertion of her husband as alleged, but sought in the answer to justify such desertion on the ground of alleged failure of the husband to provide for her and her two children, and upon the ground of unkind treatment by the husband. At the hearing before the master the complainant proved all of the allegations of his bill, but the defendant wife failed to introduce any evidence whatever to sustain her answer. On the 25th day of June, 1902, the circuit judge in and for Duval county rendered a decree divorcing the said parties a vinculo matrimonii, and, in consonance with the voluntary offer in the complainant's bill, adjudged the custody of the said two minor children to their mother, Madge G. Hernandez, until they each arrived, respectively, at the age of 15 years, or until the further order of the court, when it was adjudged said children should have the right to select which parent they should live with.

On June 1, 1903, Eugene C. Hernandez filed his petition in the circuit court of Duval county, in which he set forth the above-mentioned decree of divorce, and alleged that his said divorced wife, Madge G. Hernandez, had died during the month of September, 1902, and that upon her death he had taken the custody and control of his said two minor children, Blanche and Edith, then aged, respectively, eight and six years. Said petition further alleged that while said children were under the care and control of his wife they were permitted to go at large and to spend a large part of their time on the streets, and that since their mother's death, although he had endeavored to keep them at home, they were inclined to be wild, and to leave home and go off and be upon the streets; that he was unable to give them that care and attention necessary for their benefit, and deemed it desirable that they should be put in such custody and care as will enable them to be properly educated and reared; that it was his desire that his said children should be reared and educated in the faith of the Roman Catholic Church, and that he desired that said children should be placed in the custody and control of St. Mary's Orphan Home in the city of Jacksonville, Fla., to be there cared for and educated, and that he could and would pay the sum of five dollars per month for the care and maintenance of said children; that said orphans' home had expressed its willingness to take said children and educate and provide for them until they arrived at the age of 18 years. Said petition prayed that said St. Mary's Orphan Home might be awarded the care and custody of said minor children until they had arrived at the age of 18 years.

On June 1, 1903, the circuit judge of Duval county made an order upon such petition, granting the prayer thereof and reciting the fact that it appeared to the court that it was for the best interests of said minors that they should be placed in the custody and control of said St. Mary's Orphan Home, and decreed and ordered that said two minors should be placed in the custody and control of said home until each of them shall have arrived at the age of 18 years, or until the further order of the court; and it was further ordered and decreed that the petitioner, Eugene C. Hernandez, should pay to the said orphans' home the sum of five dollars per month for the care, maintenance, and support of said children.

On October 15, 1903, the appellee, Sarah Ann Thomas, filed an application to be permitted to intervene in the said divorce suit formerly pending between Eugene C. Hernandez and Madge G. Hernandez, by petition presented with the application for such intervention. Said petition, after setting forth the decree of divorce granted to Eugene C. Hernandez from his wife, Madge G. Hernandez, and its provisions as to the custody of said two minor children, alleged that the said Madge did continue to care for said two children and to rear them in a proper manner until the 16th day of September, 1902, when she died; that just before her death she did make and execute a last will and testament whereby she gave and bequeathed the custody of the said children to petitioner, Mrs. S. A. Thomas, who was her mother, and Mrs. A. M. De Lucca, who was her sister; that soon after the death of said Madge the said Eugene called at the home of her, the said petitioner, where the said Madge had lived for about two years preceding her death, and demanded possession of said children, and that she, being advised by her neighbors that he had a right to take them as matter of law, permitted him to take them from her possession, but not until she had exacted a promise and agreement from the said Eugene that whenever he found that he could not support the children as well as they had been supported by petitioner that they should be returned to her; that since that time she had learned while she was absent from the city of Jacksonville that said children were being allowed to run at large, without any care or attention being given them, and that as soon as it was possible for her to do so she returned to Jacksonville for the purpose of getting possession of the said children; that in the meantime, however, the said Eugene C. Hernandez did file a petition in the circuit court of Duval county to have said children given to the care and custody of St. Mary's Orphan Home, in the city of Jacksonville, all of which was done without notice to her, and which petition had been granted by the court, and that said two children were being held by said St. Mary's Orphan Home against the consent of both of said children, whose wish it is to live with petitioner, who is their grandmother; that she, petitioner, was amply able financially, and is a proper and fit person in all respects, to care for, maintain, rear, educate, and protect the said children, and that she is now entitled to the possession and custody of said children; and that it is to the best interests of the said children that petitioner have the care and custody of them. The petition prayed that the order and decree of the court, made June 1, 1903, consigning the custody and care of said children to St. Mary's Orphan Home, be vacated and set aside, and that she be decreed to have the care, custody, and control of said children until they each arrived at the age of 18 years. A copy of the purported will of said Madge G. Hernandez, bequeathing the possession and custody of said children to Sarch Ann Thomas, the petitioner, and to their aunt, Mrs. A. M. De Lucca, was attached as an exhibit to said petition.

Eugene C. Hernandez and the representative of St. Mary's Orphan Home filed divers objections to the petitioner being allowed to...