Montgomery v. Hughes
| Decision Date | 09 June 1911 |
| Citation | 58 So. 113,4 Ala.App. 245 |
| Parties | MONTGOMERY v. HUGHES ET AL. |
| Court | Alabama Court of Appeals |
On Application for Rehearing, Jan. 30, 1912.
On Application for Rehearing.
Appeal from Tuscaloosa County Court; Henry B. Foster, Judge.
Habeas corpus by Basil K. Montgomery for the possession of his child against M. R. Hughes and others. From a judgment for defendants, plaintiff appeals. Reversed and rendered on original hearing in the Supreme Court. On application for rehearing, the case was transferred to the Court of Appeals under the statute, where the application was denied.
Daniel Collier and R. H. Scrivener, for appellant.
Brown & Ward, for appellees.
This is a petition by the appellant for the custody of his daughter who is five years of age, and in the custody of its maternal grandparents, the appellees. The child has been with the grandparents since shortly after the death of its mother at which time the child was only a few weeks old. The father had remarried, and several conferences had been had in which the father claimed the custody of the child, and there is a conflict in the evidence as to whether the father agreed verbally, at the time of his wife's death, that the grandparents should have charge of the child for any definite time, and also as to whether, when the father had recently taken the child to his home, it was merely for a visit, or with the intention on the part of the grandparents of delivering the permanent possession to him. The grandparents took the child from the father's wife while he was absent. We do not think that the evidence on these points raises any serious question that needs to be considered in the decision of this case.
There can be no question of the jurisdiction of the chancery court to deny the father the custody of his child, and place it in the care of the grandparents or any other suitable person but there are certain recognized principles which must govern the discretion of the court in such cases. The laws of nature teach us that the relation of parent and child is sacred that the welfare of the child is conserved by the cultivation and promotion of that affection which should exist between parent and child, and that as a general proposition no one can watch over the growth and development of the child as a loving father or mother can and will.
Consequently it is recognized that, other things being equal, the parent is not only under the sacred duty of providing and caring for his child, but that, in correlation of that duty, the parent is entitled to the care and custody of his child, unless some good cause is shown why he should not have such care and custody, not merely as a matter of right, but because the law presumes that the best interests of the child are thereby subserved; and this court has said Striplin v. Ware, 36 Ala. 87, 90. See, also, 29 Cyc. 1590 et seq., and notes.
While, of course, we cannot approve acts of intemperance in the past, yet, under the evidence in this case, we hold that it has not been shown that the father is an improper person to have charge of his child, and the child's tender age excludes the idea of her making an intelligent choice.
The decree of the court is reversed, and a decree will be here rendered granting the prayer of the petitioner.
Reversed and rendered.
On Application for Rehearing.
After the opinion handed down by the Supreme Court (present term) and an application for rehearing filed, this case was transferred to the Court of Appeals under and by authority of the jurisdiction given to this court by the act of the Legislature approved March 9, 1911 (Acts 1911, pp. 95, 96, § 2), establishing the Court of Appeals.
We have carefully examined the evidence as set out in the record and, while the weight of it may be said to be in favor of appellee's contention as to the intention with which the grandfather gave the custody of the child to the father a short time before this proceeding was instituted, and while it is also true that the weight of evidence favors appellee's further contention that the child was committed to the care and custody of the grandparent by the father with an understanding that the grandparent should retain the custody of the child "and raise it until it was grown," it is nevertheless a fact, as stated by the learned justice in delivering the original opinion in this case, that the evidence on these matters is in conflict, for the father gives pointed denial to each of such contentions in his evidence set out in the record. The father positively denies that he gave the custody of the infant to the grandparent for any definite period, and this alone, without a necessity for pointing out other differences, distinguishes this case from one of the cases cited by appellee, and especially relied upon in the brief filed on application for rehearing, viz., Stringfellow v. Somerville, 95 Va. 701, 29 S.E. 685, 40 L. R. A. 623. In this case last cited it was held that, where the father had acquiesced in and had in fact been a party to placing the infant in the custody of its aunts to remain until reared by them, the court would not, on the application of the father, after the child had grown into the new life around her and become aliened, or a stranger to her paternal home, disturb the aunts' custody of the child because of a careful regard of the court to the child's welfare, deeming such a change not to the best interests of the child under the...
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J.C. v. State Department of Human Resources
...Kirkbride v. Harvey, 139 Ala. 231, 35 So. 848 (1904); Harrist v. Harrist, 151 Ala. 656, 43 So. 962 (1907); and Montgomery v. Hughes, 4 Ala. App. 245, 58 So. 113 (1911), the common law did not empower a trial court to permanently sever the parent-child relationship. A custody order never had......
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E.H.G. v. E.R.G.
...parental authority over a child's associations flows naturally from the “sacred duty” of rearing children. See Montgomery v. Hughes, 4 Ala.App. 245, 247, 58 So. 113, 113 (1911). As Justice Souter explained in his opinion concurring in the judgment in Troxel: “The strength of a parent's inte......
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Robertson v. State
... ... Supreme Court, and that court answered as follows: ... "Per curiam. This cause belongs in the Court of ... Appeals. Montgomery v. Hughes, 4 Ala.App. 245, 58 So ... 113. All Justices concurring." ... That ... decision is considered as having fixed the ... ...
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E.H.G. v. E.R.G. (Ex parte E.R.G.)
...come later—indeed, they were prefigured in the discipline and worship of the family—but the “sacred” relationships, Montgomery v. Hughes, 4 Ala.App. 245, 58 So. 113 (1911), within the family came first.II. The family, like the state and the church, is a legitimate governing authority within......