Merch. v. Bussell

• Decision Date: 28 July 1942
• Parties: MERCHANT v. BUSSELL.
• Court: Maine Supreme Court

27 A.2d 816

MERCHANT

v. BUSSELL.

Supreme Judicial Court of Maine.

July 28, 1942.

Exceptions from Superior Court, York County; George L. Emery, Justice in Superior Court.

Habeas corpus proceeding by Francis O. Merchant against Margaret Bussell to recover custody of petitioner's minor daughter. To review an order dismissing the writ and ordering the child restored to the custody of respondent, petitioner brings exceptions.

Exceptions overruled.

Before STURGIS, C. J., and THAXTER, HUDSON, MANSER, WORSTER, and MURCHIE, JJ.

Joseph E. Harvey, of Biddeford, for petitioner.

John P. Deering, of Saco, for respondent.

THAXTER, Justice.

September 25, 1941, Francis O. Merchant filed a petition for a writ of habeas corpus to recover custody of his minor daughter, Nancy Ann Merchant, aged four years. The writ issued and the child was produced in court. After a hearing, the sitting justice dismissed the writ and ordered the child restored to the custody of the respondent. The case is before us on exceptions to this ruling.

The petitioner was the husband of Mary Luella Bussell, who was the daughter of the respondent. The marriage took place March 6, 1936, and the child was born March 3, 1937. The mother died a few hours after the birth. Shortly after the funeral there was a conference at the home in Saco of Dr. Clarence E. Thompson, a brother-in-law of the respondent. There were present Mrs. Bussell, her two daughters, and the petitioner. At the hearing Mrs. Bussell testified that at this family conference, in response to her inquiry as to whether she could have the child, the petitioner said: "Yes, she is your child. You may bring her up." The daughter, Catherine, corroborated her mother. Dr. Thompson testified that on the same day he had a talk with the petitioner who said: "I have given the child to Mother Bussell to remain with her as long as she lives." It is obvious that the reference is to the life of the grandmother. The petitioner admits that there was talk about the future of the child but denies that he ever agreed that the grandmother during her life could have custody of his daughter. The important fact, however, is that with the father's consent the child did remain with the grandmother who a year later moved to Rochester, N. Y., where she lived with her daughters and brought up the child. In June, 1941, the respondent's sister, Mrs. Thompson, died and since then the respondent has made her home with her brother-in-law, Dr. Thompson, in Saco. The grandmother has given the child devoted care, has watched over her during all the vicissitudes of babyhood, has given of her time and money that her grandchild might have the same kind of home life that the respondent was able to give to her own daughters, until today there is the same devotion between grandmother and grandchild as there would have been between mother and daughter. During all this time the father has seen but little of his child, has contributed in a relatively small way to her support, has given her but little personal attention, and apparently has been quite willing that the normal ties which bind together parent and child should be severed. In 1939 he remarried and the following year a son was born to his second wife. His daughter visited him and his wife in the summer of 1940 and on bringing her back to the respondent there was not the slightest intimation that he intended to end the arrangement which had been established on the death of his first wife. In fact, he at all times seemed perfectly satisfied with the child's bringing up and desirous that things should go on as they were, until the spring of 1941 when he requested that the child be returned to him.

The question before us is whether on these facts, about which there is not any real dispute, the father can as a matter of right reclaim the custody of his child.

A writ of habeas corpus is ordinarily a proper remedy for a parent who claims to have been unlawfully deprived of the custody of a child. Generally speaking, the object of a writ of habeas corpus is to release one from an illegal restraint. In the case of an adult, who may go his own way, no more is required. An infant of tender years must, however, be in the custody of someone, and to do no more than order a release would as a rule be a futility. In such cases courts have accordingly gone farther and have entered orders providing for custody. Rex v. Delaval, 3 Burr. 1434; Richards v. Collins, 45 N.J.Eq. 283, 17 A. 831, 14 Am.St.Rep. 726; In re Waldron, 13 Johns., N.Y., 418; In re Kottman, 1833, 2 Hill, S.C., 363, 27 Am. Dec. 390. See In re Barry, C.C., 42 F. 113, and the cases cited in State v. Smith, 6 Greenl. 462, 6 Me. 462, 20 Am.Dec. 324. The basis on which the sovereign acting through its judicial officers exercises this right is well stated in In re Barry, supra, 42 F. at page 118, as follows: "The state thus acting upon the assumption that its parentage supersedes all authority conferred by birth on the natural parents, takes upon itself the power and right to dispose of the custody of children as it shall judge best for their welfare. People v. Chegaray, 18 Wend. [N.Y., 637], 642, 643; Blissets' Case, Lofft 748. The cases before cited show that the English and American courts act in this behalf solely upon the assertion of the right of the sovereign whose power they administer to continue or change the custody of the child at his discretion, as parens patriæ, allowing the infant, if of competent age, to elect for himself; if not, making the election for him." Where the writ is dismissed and control of a child remains where it is, there may be no need of an order providing for custody; but we see no objection in providing, as was done in the instant case, that custody shall remain in the respondent.

No rigid rule can be laid down to guide the court in questions of custody. The natural right of a parent to the care and control of a child should be limited only for the most urgent reasons. At the same time it has long been recognized that such right of a parent is not absolute. It is dependent to a very considerable extent on the reasonable performance by the parent of those duties which are owed to the child, and in case of a wilful failure of a father and a mother to fulfill the obligations...