Kinnaird v. Lowry

• Decision Date: 14 October 1912
• Docket Number: 15,675
• Citation: 59 So. 843,102 Miss. 557
• Court: Mississippi Supreme Court
• Parties: MRS. S. F. KINNAIRD v. MRS. NANCY LOWERY

59 So. 843

102 Miss. 557

MRS. S. F. KINNAIRD v. MRS. NANCY LOWERY

No. 15,675

Supreme Court of Mississippi

October 14, 1912

APPEAL from the chancery court of Carroll county, HON. JAMES F MCCOOL, Chancellor.

Habeas corpus by Mrs. S. F. Kinnaird against Mrs. Nancy Lowery for the custody of her infant children. From a judgment awarding the children to defendant, plaintiff appeals.

From the testimony it appears that the appellant has been married three times. While living in Birmingham with her second husband, who was the father of these two children, she sent her two little daughters to her mother. The record shows that her then husband was a man of rather profligate habits. Some two years later that husband died, and she soon after became the wife of a Mr. Kinnaird, who seems to be a man of industrious and sober habits. Soon afterwards she brought this suit for the possession of her two children, setting up that she is willing and able to care for them, and give them a home with her and her present husband, and that her only reason for sending the children to their grandmother was that she and her husband had been separated, and that, even when they lived together, he was not a proper person to have the care of them.

Reversed.

McClure & Conger, for appellant.

We would refrain from citing any other case than Hibbette v Bains, 78 Miss. 695, were it not for the fact that appellee has attempted to reflect upon appellant's care of the said children (she dared to state her own knowledge) and we would refrain from citing the case of Moore v Christian, 56 Miss. 408, if appellee had not denied withholding the custody of the children from appellant, their mother. Referring to the Hibbett case, supra, we earnestly call the court's attention to that well written and thorough statement of the law by the eminent Judge WHITFIELD in his opinion there.

Another elaborate decision on the right of the parent to the custody of the child is announced in Weit v. Marley, 99 Mo. 494, 6 L. R. A. 672, which this court has adopted as accurate.

It is the facts of a case which make it. The facts of this case show that any claim on the part of appellee that she is warranted from any standpoint whatever in withholding the custody of these children is utterly foolish and astounding beyond any reasonable conclusion that can be drawn, and contrary to all policies of the law as handed down by the courts. There is not even an exceptional circumstance. We have cited Hibbette v. Bairns, and now standing upon every principle of that case, as announced, we do not stop, but show others.

"A widowed mother, though poor and dependent, is entitled to the custody of her thirteen-year-old son, notwithstanding he prefers remaining with a kind man of good character and means, to whom his father contracted him." Moore v. Christian, supra.

There is no element of contract in this case. The mother is not poor, widowed, nor dependent, and not a word against her moral character, and her case is strengthened because the children are little girls and need her care and attention.

"To harbor a child absconding from his home, and prevent his mother using her parental authority to compel his return, is to withhold the custody of the child from the person entitled to it, notwithstanding the child has permission to leave if he wishes to do so, and he stays from inclination." Christian case, supra; and Maples case, 49 Miss. 393.

"Nature gives to parents that right to the custody of their children which the law merely recognizes and enforces. It is scarcely less sacred than the right to life and liberty, and can never be denied save through the bad character of the parent, or some exceptional circumstances which render its enforcement inimical to the best interests of the child." Moore v. Christian, supra.

We would not want the law in such cases any more clearly, than is set out in the above view of it.

"The parental right must give way to the permanent interests of the child, if it be shown that the life or health or morals of the latter will be prejudiced, or his usefulness as a citizen seriously jeopardized by remaining under the parental control."

This court there said that "a court cannot sit in judgment upon the question whether a wealthy stranger can give to the child more worldly advantages than an indigent parent." Can poverty be made a crime?

In the case at bar it is not shown, nor attempted to be shown, that the mother is in any respect an improper person to control and govern her offspring; but on the contrary, she has shown by all of her witnesses that she is abundantly qualified to have the care, custody, control and maintenance of her children.

There is no allegation, not a word of attempted proof, of her poverty and dependent condition. But, now, the court will remember the testimony of witnesses as to her property valuation.

There is no element of contract in this case, though an attempt is made by appellee, which will be discussed later, to show an implied contract on her part to give up the custody of the children to appellee.

The court in the Maples case, 49 Miss. 393, refused to return a child living with its grandfather, to its mother, who was shown to be an immoral woman; and the court did right. In the Maples case the mother's agent demanded possession of the child, and the court there held that there was no detention. This point is overruled by the Christian case.

The infant's wishes cannot control in this case, and we only have to cite in support of it, Foster v. Alston, 6 How. (Miss.) 406; Hibbette v. Bains, cited supra and Moore v. Christian, cited supra.

Under the circumstances of this case, and in the absence of any objection to the mother, her legal right must prevail. 1 Black Comm. (Chitty's Ed.), page 373, Marg., p. 453, b. 1; 2 Kent's Comm. 194, sec. 29, pt. 4.

"The evidence shows that the childrens' opportunities, her permanent happiness and good were better with the mother than with the grandmother. The mother has done nothing, nor does anything appear in the circumstances of the case, to destroy her right to the custody of these children. McShan v. McShan, 56 Miss. 413.

"The polestar of this investigation is the best interest of the children." Glidewell v. Morris, 42 So. 537.

This court always awards the custody of infants to the parent, unless the parent be shown unfit to have them. Hibbett case, supra and Glidwell v. Morris, supra.

Even in the case of Wallace v. Wallace, 46 So. 398, where the proof showed the mother to be a permanent invalid, with equal chances of dying or living, this court said Chancellor...