In re Petition of Bort
| Decision Date | 03 May 1881 |
| Citation | 25 Kan. 308 |
| Parties | In the Matter of the Petition of FRANK B. BORT for a Writ of Habeas Corpus |
| Court | Kansas Supreme Court |
Decided January, 1881
Original Proceedings in Habeas Corpus.
PETITION for a writ of habeas corpus, filed in this court by Frank B Bort, February 3, 1881. The facts are sufficiently stated in the opinion, filed herein May 3, 1881. The case was argued orally by Mr. C. F. W. Dassler, for the petitioner, and by Mr. Lucien Baker, for the defendant.
Mr. C F. W. Dassler, for the petitioner, and Mr. Lucien Baker, for the defendant.
OPINION
This is a proceeding in habeas corpus, brought by Frank B. Bort, the father of Edith M. Bort and Fred. Bort, against Medora E. Bort, the mother, for the possession of these children. At the time of the commencement of this proceeding the children lacked a few weeks of being, respectively, four and five years old. The parents were divorced by a decree of the circuit court of Sauk county, Wisconsin, on January 26, 1881. This decree awarded the custody of the children to the father, and upon this decree plaintiff mainly relies. The petition in said action was filed April 17, 1880, by Mrs. Bort. At that time both parties resided within the jurisdiction of said court. Defendant filed a cross-petition in that action. Soon after commencing her action, Mrs. Bort took her children and came to Leavenworth to live with her parents, where she has ever since resided. In October, 1880, she dismissed her suit in Sauk county, but the case went on to trial upon the cross-petition, and upon that a decree was entered in favor of defendant, giving him a divorce for the fault of plaintiff, and also the custody of the children.
The petitioner invokes the benefit of that clause of the federal constitution which provides that full faith and credit shall be given in each state to the judicial proceedings of every other state, and insists that that decree concludes the question as to the rights of the respective parents at its date, and that, unless some subsequent change in the relative position and fitness of the respective parties is shown, the custody must be given to the father. This claim seems to rest on the assumption that the parents have some property rights in the possession of their children, and is very justly repudiated by the courts of Massachusetts. (2 Bishop on Marriage and Divorce, 5 ed., p. 204.)
We do not, however, propose to place our disposition of this case upon the decision of any such question as that. We shall concede that, as between the parents, that decision is a finality, and still we do not feel warranted in sustaining the petition of the plaintiff.
We understand the law to be, when the custody of children is the question, that the best interest of the children is the paramount fact. Rights of father and mother sink into insignificance before that. Even when father and mother are living together, a court has the power, if the best interests of the child require it, to take it away from both parents and commit the custody to a third person. In other words, a court of chancery stands as a guardian of all children, and may interfere at any time and in any way to protect and advance their welfare and interests. Now in a divorce suit the court is limited to the question: Which of the two parents is the better custodian of the children? The decision only determines the rights of the parties inter sese. But in this proceeding the question is, What do the best interests of the children require? Shall they be given to either party? or shall the court place the custody with some other person? Now the petitioner and respondent, or plaintiff and defendant, in this proceeding, the parents of these children, late husband and wife, have filed in this court most bitter and malignant charges against each other. We have examined the testimony adduced in support of these charges, and are glad to know that neither is as bad as the other would have us believe. It is sad to...
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Yarborough v. Yarborough 12 8212 13, 1933
...child requires a change in custody, the parties will be bound. Wear v. Wear, 130 Kan. 205, 285 P. 606, 72 A.L.R. 425. See In re Bort, 25 Kan. 308, 309, 37 Am.Rep. 255. Another state gives credit to the extent that prior determinations of fact are deemed incontrovertible, but exercises an in......
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Helton v. Crawley
...exercise of power.’ In the often quoted words of Justice Brewer when a member of the Supreme Court of Kansas, in Re Matter of Bort, 25 Kan. 308, 37 Am.Rep. 255, 257: ‘* * * a Court of Chancery stands as a guardian of all children, and may interfere at any time and in any way to protect and ......
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Bd.man v. Bd.man.
...such an order as to his custody as would best serve his interests, even without proof of a change of circumstances. In re Bort (Brewer, J.), 25 Kan. 308, 37 Am.Rep. 255; Barnett v. Blakley, 202 Iowa 1, 6, 209 N.W. 412; In re Stockman, 71 Mich. 180, 193, 38 N.W. 876; In re Culp, 2 Cal.App. 7......
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