Kenner v. Kenner
| Decision Date | 11 April 1918 |
| Citation | 202 S.W. 723,139 Tenn. 700 |
| Parties | KENNER v. KENNER. |
| Court | Tennessee Supreme Court |
Appeal from Chancery Court, Sullivan County.
On petition for rehearing. Petition denied.
For former opinion, see 201 S.W. 779.
The point chiefly stressed is that by the decree in the Alabama suit the complainant was deprived of his property without due process of law, in violation of the Fourteenth Amendment to the federal Constitution, in that by it he was deprived of the services of his child, without having been made a party by personal service of process.
The contention, although put forward with the utmost seriousness has nevertheless an element of unconscious humor; for it is impossible to perceive how a girl baby less than two years old can perform any services of pecuniary value.
The real ground depended on, we assume, is that the complainant by the deprivation of present custody, has lost the possibility of enjoying future services when the child shall have grown old enough to render any, in case it shall live so long. But, as pointed out in the original opinion, there is not necessarily any permanent deprivation, even of custody since the power to change the custody remains in the Alabama court whenever it shall deem the interests of the child require such change.
Is the right of custody, aside from the child's ability or inability to perform services, such a property right as the Fourteenth Amendment was designed to protect? It is not a right of property. Barry v. Mercien, 5 How. 103, 12 L.Ed. 70, 78; De Krafft v. Barney, 2 Black. (67 U S.) 704, 17 L.Ed. 351, 352. The father is the natural guardian, but for nurture only. Differently phrased, he is a trustee for the child, to protect, and rear, and train it for the duties of life. Incidentally, arising out of the duty of nurture, maintenance, and education, he is entitled to its reasonable services. McKelvy v. McKelvy, 111 Tenn. 388, 77 S.W. 664, 64 L. R. A. 991, 102 Am. St. Rep. 787, 1 Ann. Cas. 130. But he has no property right in the child. He cannot compel it to do service for another. Respublica v. Keppele, 2 Dall. 198, 1 L.Ed. 347. The cases of Cloud v. Hamilton, 11 Humph. (30 Tenn.) 104, 53 Am. Dec. 778, and Tennessee Manufacturing Co. v. James, 91 Tenn. 154, 18 S.W. 262, 15 L. R. A. 211, 30 Am. St. Rep. 865, are not opposing authorities. In these cases there was no involuntary servitude enforced upon the child. Nor do we think such servitude is approved in Stewart v. Rickets, 2 Humph. (21 Tenn.) 151. And see Stringfield v. Heiskell, 2 Yerg. (10 Tenn.) 546. These were cases arising on apprenticeship, however, in which institution perhaps it may be said a schooling for the child is provided. However, it is to be noted that the sections of the Code, enacted after the decision in Stewart v. Richets, purporting to deal with the whole subject, make no provision for the binding of a child to apprenticeship by the father. Shan. Code (Thompson Ed.) §§ 4321-4336. If any service for another be in fact performed by a child, if there be no emancipation of the child, the compensation belongs to the father. Burke v. Ellis, 105 Tenn. 702, 710, 58 S.W. 855. It is also true that, if the father be unlawfully deprived of custody, he may, after a judgment of restoration, obtain compensation for the reasonable value of the child's services during such unlawful restraint. It is also true that, where the child, in the father's custody, is wrongfully injured by another, the father may enforce against such wrongdoer his demand for the reasonable value of the child's services during the disablement. But this right is dependent upon the right of actual custody. If he has lost the custody, and is compelled to seek the aid of a court to regain it, the question will be decided with a view to the best interests of the child. The matter of custody is the real right involved in such cases, and not the dependent or incidental right to services. But, as stated, the right to the custody of a child is not a property right, nor a right to the custody or control of property. If property, it could not be taken without compensation. Yet all will agree that the father, by the judgment of a court, may be lawfully deprived of the custody of his child without any compensation. The custody may be confided to the mother, where the married pair are living apart, or in disposing of a divorce suit between them, or to a grandfather, or grandmother, or even conferred upon a stranger, if such course be demanded by the child's welfare. This is frequently done under juvenile court acts. What has been said indicates, as we think soundly and truly, how foreign to the relation is any idea or theory of property in the child.
Indeed the controversy arises solely out of the domestic relation. These matters are regulated by the states,...
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