Hussey v. Whiting
| Decision Date | 22 September 1896 |
| Docket Number | 17,899 |
| Citation | 44 N.E. 639,145 Ind. 580 |
| Parties | Hussey v. Whiting |
| Court | Indiana Supreme Court |
From the Gibson Circuit Court.
Affirmed.
Nebeker & Sims, for appellant.
A. H Lindley, for appellee.
This was a proceeding by habeas corpus for the custody of Ray Hussey, a little girl thirteen years of age, and was instituted by the appellee, her maternal grandfather, against her father, the appellant. The decree of the lower court was in favor of the appellee, and the appellant submits the case to this court, by his appeal, upon the evidence.
It may be fairly said that, by a clear preponderance of the evidence either party entertains a deep affection for the child, and might reasonably be intrusted with her moral training. Since the death of her mother, some six years before the disagreement which resulted in this proceeding, she resided with her grandparents, who were possessed of a large, comfortable home, and lands of the value of $ 20,000.00 or more, and were willing and prepared to render every care and comfort necessary to the welfare of the child. During the period mentioned the appellant continued, and still is, a widower, with little means above his indebtedness, but with an average income of $ 50.00 per month from his business. Until he took the child from her grandparents he made his home with them, but his business, that of traveling salesman, required him to be absent from five to six days each week. He paid for his own boarding and supplied most of the material for clothing the child, but her boarding and care, and the making of her clothing were supplied by her grandparents. The appellant and the child took up their home with the appellee, pursuant to a request from Mrs. Hussey, while upon her deathbed, that they should have a home with, and that the child should be raised by the appellee and his wife. The parties differ as to the conversation at the time of this request, as to whether the appellant simply acquiesced in the request and the appellee's promise, or whether he declined to "give" the child to her grandparents. But there is no disagreement about the fact that the appellee and his wife cared for the child as a member of their family, and became greatly attached to her, and that the appellant took her from them, not by reason of any neglect or mistreatment of her, but because he and his mother-in-law, at times, disagreed and had bitter words as to his own relations to the household, and because he, without just cause, thought that the child was becoming estranged from him by the influence of her grandmother. When she was taken from the appellee's home she was taken to the home of the appellant's married sister, who lived in the town of Princeton, where the appellee lived also. The sister, Mrs. Eby, owned and lived in a house of four rooms; her husband labored at $ 1.25 per day; there were four members of her family and a boarder five days in the week when the appellant and his daughter took up their new abode with her. Mrs. Eby was a kind-hearted woman, affectionate with children and favorably disposed towards the little girl; she performed all the duties of her household without a servant, and, while her circumstances were not the best, she was a fit woman to have the care and moral training of the child. Mrs. Hussey had died of consumption, and the child was delicate and evidently predisposed to that disease.
Ordinarily the father is entitled to the custody of his minor children. This was the rule of the common law, and is affirmed by statute in this State, but, where the welfare of the child is retarded by...
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