In re Scarritt

• Citation: 76 Mo. 565
• Court: Missouri Supreme Court
• Decision Date: 31 October 1882
• Parties: IN THE MATTER OF BERENICE S. SCARRITT, an Infant.^a1

76 Mo. 565

IN THE MATTER OF BERENICE S. SCARRITT, an Infant.^a1

Supreme Court of Missouri.

October Term, 1882.

Habeas Corpus.

WRIT GRANTED.

O. H. Dean, Wm. Warner, D B. Holmes, John C. Gage, John L. Peak and Jas. R. Riggins for petitioner.

The testimony proves beyond cavil the following facts:

1st, That the little girl, Berenice, has a great affection for and is very much attached to the petitioner, her father, and his wife.

2nd, That Berenice's father, the petitioner, and his wife, are devotedly attached to this little child; and are very much grieved and pained because of the circumstances which deprive them of her society and affection; and that they are willing, desirous and exceedingly anxious to have the little girl in their own custody, and to care for her, train her, educate her, build her up in her moral and religious character, and lavish upon her all the deep affection and love of a father's and mother's heart; to make her own life bright and beautiful, a comfort to themselves, a source of happiness to others, and an ornament to society.

3rd, That the best interests, both present and future, of the little girl, will be subserved by removing her now to the custody of her father; because: ( a) He has a happy, pleasant, healthy, comfortable home to offer her. ( b) The moral, social and religious influences of that home are of the very best. ( c) Her father is a lawyer of high standing and ability, prosperous in his profession, successful in all business matters, having obtained even this early in life, by his own individual exertions, almost a competency, and is enabled to do for his daughter anything necessary for her comfort or pleasure. ( d) The father of Berenice is not only able to do for her now, everything that could be desired, but his prospects for the future are of the brightest, and, if there is anything in indications, the future of Berenice, if under his care, would grow brighter and happier as the years roll on. ( e) The attachment and tender affection of the father for his child, manifested through her whole life, is sufficient guaranty of his continued devotion to her interests and welfare.

4th, That while there is every reason that the father should have the custody of his daughter, and while the proof is ample that the welfare of the child will be bettered by placing her under his charge, there is also proof to the effect that the best interests of the child will not be subserved by leaving her in the custody of the respondents; because: ( a) The grandmother is over-indulgent to the child, and the lack of training has a tendency to spoil her disposition. ( b) Both of the respondents are now advanced in life, and the health of both is poor. ( c) The nervous, excitable temperament of Mrs. Swinney, will tend to create in the child the same disposition. ( d) The present financial condition of the respondents is that of bankrupts, and the future contingencies upon which they rely for the upbuilding of their fortunes, lack the requisite solidity to impress us with much hope of their future prospects being bettered in this regard. ( e) By reference to Mrs. Swinney's testimony as to the interpretation placed by her upon the so-called contract, and her determination to retain the custody of Berenice after the ten years have expired, and to her manner of testifying, we are compelled by our own experience and by our own knowledge of human nature, to believe that the feeling exhibited by her toward the petitioner will be communicated to, and imbibed by the child, and that before the child reaches the age of ten years she will have become a stranger to her father, as far as her love and affection for him is concerned.

5th, That the letter attached to the respondents' return, and upon which they rely, is not a contract and was never intended to be a contract, or an agreement, or a memorandum of an agreement, in any manner whatever; that it was simply intended for the purpose of relieving Mrs. Swinney's distress of mind and body for the time being; that the custody of Berenice has been a matter of discussion between the parties hereto ever since the date of that letter, and it was never interposed, or even mentioned, as being the ground upon which the respondents claimed the possession of the child, until nearly four years had elapsed from its date. The testimony further clearly shows that the letter was given--and the child allowed to remain with its grandmother during all these years--out of consideration and affection for Mrs. Swinney, and the subsequent events all go to show that none of the parties looked upon the letter as a contract or agreement--or upon the custody of the child as having been given to the grandmother by the father--but on the other hand it appears that the respondents have continually recognized the father's right to the custody of his little daughter by repeated expressions, indicating their apprehensions that he might exercise that right, and by their repeated demands of the promise from the father that the child should be returned to them whenever the father desired to take her to his home on a visit; and by the fact that the respondent, J. O. Swinney, assisted the petitioner in obtaining his appointment as guardian of Berenice by going on his bond, and finally by the fact that the respondents always looked to the petitioner for the payment of bills created in her behalf for clothing and medical attendance; that they did not regard the custody of the child transferred to them, or that they stood in loco parentis entitled to rights and assuming all the obligations and liabilities of a parent.

6th, The proof is overwhelming to negative the proposition of the respondents, that the health of the child will be impaired by removing her from the custody of the respondents and placing her in the care of her father. And while this point is no issue in the case, we have deemed it fit to produce testimony on it, so that the court might not hesitate for fear of doing the child harm in this behalf. 7th, The testimony further shows, that, if Berenice is not removed now, it will be impossible for the petitioner to obtain the custody of her when she arrives at ten years of age. The testimony of Mrs. Swinney on this point is sufficient to convince any one that she never intends to give up the child as long as she can possibly avoid it. Her interpretation of the so-called contract in her testimony, is very different from the interpretation put upon it by the respondents' return--and only goes to show that the letter is simply a make-weight, and not a bona fide defense to the petitioner's claim.

In conclusion, we have only this to suggest to the court: that this is a proceeding which involves not chattels, nor property, nor fortune, nor life, but more than these--the dearest and tenderest ties and interests that bind human hearts together and make society what it is, a human brotherhood; which involves the strong, earnest affection of a father's heart, and the future welfare of a daughter whom he loves--and from whom he has been most unwillingly separated for many years. For no small or uncertain reasons should a father be separated from his child, nor should a child be deprived of a father's affection and watchful care. A letter written for a temporary purpose, after much solicitation and most unwillingly, as an act of love and kindness for another, and out of sympathy for her bereaved condition, should not, we respectfully submit, become the cause of a separation between a parent and child; for no such reason should the child become an orphan as to her father's affection and a stranger to his home.

Ewing & Hough and C. A. Winslow for respondents.

The rule of law supported by the authorities as applicable to this case, may be thus stated: Prima facie, the father is entitled to the custody of his minor children. This is not an absolute and unconditional right, but depends upon various considerations affecting the welfare of the children, and the relations existing by his act or permission between them and other persons. While he may not make an absolute and irrevocable gift or contract, permanently disposing of their care and custody and his legal and natural obligations, so as to preclude him from reclaiming them, or to avoid responsibility for their care and maintenance, he may place them in the custody of others and permit them to remain, or contract for their temporary care and custody, under circumstances which will preclude him from disrupting the new relations created by his conduct or agreement, unless the interests of the child should demand it, and this, too, without any reference to his moral or pecuniary fitness to perform his natural and legal duties in the premises. The primary consideration is the interest of the children, which includes everything pertaining to their welfare, moral, religious, social and physical. The rights and interests of third persons to whom he may have committed their custody are to be considered and maintained, unless some interest of the children demands their repudiation. Chapsky v. Wood, 26 Kas. 650; s. c., 13 Cent. Law Jour. 494; Pool v. Gott, 14 Law Reporter 269; Dumb v. Keen, 47 Iowa 435; Comm. v. Gilkerson, 5 Clark (Pa. Law Jour.) 30; Matter of Murphy, 12 How. Pr. (N. Y.) 513; Mercein v. People, 25 Wend. 64; State v. Libbey, 44 N. H. 321; Comm. v. Dougherty, 1 Legal Gaz. Rep. (Pa.) 63; Corrie v. Corrie, 42 Mich. 509; In the Matter of Bort, 25 Kas. 308; s. c., 37 Am. Rep. 255; State v. Kirkpatrick, 54 Iowa 373. It is settled that arrangements of this kind made with married women, the husband consenting, are valid. Bently v. Terry, 59 Ga. 555; s. c., 27 Am. Rep. 399. The appointment of petitioner as guardian could not enlarge his parental rights, or aid him in avoiding the effect of what he had done as parent. People v. Kearney, 31 Barb. (N. Y.) 430.

This case forms a peculiar and manifest exception to the general and well established rule of...