Moore v. Dozier
| Decision Date | 11 April 1907 |
| Citation | 57 S.E. 110,128 Ga. 90 |
| Parties | MOORE v. DOZIER. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
Where under section 2505 of the Civil Code of 1895, on a writ of habeas corpus sued out against the mother of illegitimate children under 12 years of age, their custody was awarded to a charitable institution bearing the name of the "Orphans' Home of the South Georgia Conference of the Methodist Episcopal Church South," on the hearing of another writ of habeas corpus, subsequently sued out by the mother, an objection to the admission in evidence of the record of the proceedings and judgment in the first case based on the ground that the name showed that the institution to which they were awarded was sectarian in character, and that this was a violation of the constitutional guaranty of religious liberty, was properly overruled, and the evidence was rightly admitted.
On the hearing of a proceeding by writ of habeas corpus, under section 2505 of the Civil Code of 1895, to take the custody of illegitimate children under 12 years of age from their mother and to award their custody to a charitable institution, on the ground that she was a notoriously immoral woman and unfit to rear them and unable to provide for them that their father or fathers had abandoned them, and that they were being reared under immoral influences likely to degrade their moral characters and devote them to vicious lives, or, on the return and hearing of another writ of habeas corpus, subsequently sued out by the mother, seeking the restoration of their custody to her, evidence that her general reputation for chastity in the community where she lived was bad, and that she was generally reputed to be an immoral woman, was admissible, as well as evidence of specific acts tending to show that she was an improper person to have the care and custody of the children.
In such a case as that indicated in the preceding notes, it was not competent for witnesses to state that in their opinion the mother was an unfit person to rear her children.
If a witness has knowledge as to the property of a woman, her occupation, means of support, the number of her children, the cost of rearing children, or other like facts, he may state the facts within his knowledge, and in addition thereto may give his opinion, based thereon, as to her financial ability to rear such children, on the hearing of a proceeding by habeas corpus to take them from her custody as unfit and unable to rear them; but it is not competent for a witness to state, upon hearsay or reputation, that a woman is unable to rear her children.
It was not admissible to prove by the ordinary before whom the first trial was had that he only knew the mother of the children from having seen her at that trial, that his knowledge as to her chastity and reputation was based entirely on what he heard from evidence at such trial, and that from that evidence he would say that such reputation was bad.
Section 2505 of the Civil Code of 1895 was not repealed by the act of 1904 (Acts 1904, p. 93) touching the committing of children in certain cases to charitable institutions.
Error from Superior Court, Bibb County; W. H. Felton, Jr., Judge.
Habeas corpus proceedings by Annie Moore against J. L. Dozier. From a judgment of the superior court affirming a judgment of the ordinary refusing to restore children to the petitioner's custody, she brings error. Reversed, with directions.
On the hearing of a writ of habeas corpus, under Civ. Code 1895, § 2505, to take the custody of illegitimate children under 12 years old from their mother and award it to a charitable institution on the ground that she was a notoriously immoral woman and unfit to rear them, it was not competent for witnesses to state that in their opinion the mother was an unfit person to rear her children.
This case involves a controversy between a mother and a charitable institution for the possession of her three little children under 12 years of age. Upon a proceeding by writ of habeas corpus, brought by a citizen against the mother, alleging that the children were illegitimate, that the mother was poor and unable to provide for them, that she was a notoriously immoral woman and unfit to rear them, that the father or fathers had abandoned them, and that they were being reared under immoral influences likely to degrade their moral characters and devote them to vicious lives, and upon the intervention of the superintendent of the South Georgia Conference Orphans' Home, the children were awarded and committed to the home. Some 14 months later the mother made application for a writ of habeas corpus to have the children returned to her custody. She contended that she had reformed, had become a consistent member of the church, and was living a correct, upright life. She admitted that she was poor, but asserted that she was living with her father, and working for him, and that she, with the assistance that he was willing to give, was able to provide for the children. The defendant contended that she was still of an immoral character, unsuitable and unable to rear the children, and that for their interest they should not be returned to her keeping. The ordinary before whom the proceeding was taken refused to restore the children to the mother's custody. The case was carried to the superior court by writ of certiorari, and the judgment of the ordinary was there affirmed, and the writ dismissed. Petitioner excepted.
Nottingham & McClelland, for plaintiff in error.
Hardeman & Jones, for defendant in error.
Cases of this character are becoming so common that there may be at times danger of losing sight of the fact that they involve principles which lie at the basis of society and of government. They include no less a question than the determination of where the right of the individual to his or her own children must yield to their good and that of society, of which they are members. Ordinarily a father, or, if no father, the mother, has a right to the custody of his or her children. Civ. Code, 1895, § § 2502, 2503. The mother may be poor, but poverty alone, save in extreme cases, furnishes no reason to deprive her of her children. The rich cannot say to the lowly: The hovel has its rights, as well as the palace. The ties of motherhood, too, are not to be lightly disregarded. The Mosaic account of the creation completes but three short chapters, when the fourth opens with the glad cry of motherhood, as Eve said: "I have gotten a man from the Lord!" And from then till now the deepest, the tenderest, the most unswerving and unfaltering thing on earth is the love of a mother for her child. The love of a good mother is the holiest thing this side of heaven. The natural ties of motherhood are not to be destroyed or disregarded, save for some sound reason. Even a sinning and erring woman still clings to the child of her shame, and, though bartering her own honor, will rarely fail to fight for that of her daughter. A mother who will willfully sacrifice her daughter's virtue is so rare as to be looked upon as a moral monstrosity. The law recognizes that, although a woman may have made a misstep, this does not necessarily render her unfit to have the care of her child; for Civ. Code 1895, § 2509, declares that the mother of an illegitimate child is entitled to its custody. While this is true, and the rights arising from nature are not to be lightly set aside, yet where people form society and establish a government for their mutual welfare and protection, they must yield something of their individual rights for the common good. The children of the state to-day are to be the men and women of to-morrow, the citizens, the fathers and mothers. While the state will not usurp the place of the parents, it will look to the protection of the children from suffering or degradation. If the parent so far fails in his or her duty that the child is in destitution and suffering, or is abandoned, or is being reared under immoral, indecent, or obscene influences, likely to degrade it and bring it to a life of vice, the state may interpose its protecting arm and guard the little life against the impending disaster. As was said in Hunter v. Dowdy, 100 Ga. 644, 28 S.E. 387, speaking of a female child in a similar case: We deem it not amiss to thus mention the serious question which such cases raise--on the one hand the recognition of natural rights and duties, the importance of the relation of parent and child, and of the family which is a factor in the upbuilding of the state; and, on the other hand, the right and power of the state to save the little ones from ruin. The judge before whom such a case is brought has no more solemn duty to perform than the awarding of the custody of a child.
1. Turning to the specific questions involved in the present case, objection was made to the admission in evidence of the record of the former proceeding, in which the ordinary awarded the custody of the children to the Orphans' Home. The ground of objection was that it is contrary to the spirit, if not the letter, of our Constitution, guarantying religious liberty, for the courts to commit children to a sectarian institution. There is nothing before us save the name of the home, the Orphans' Home of the South Georgia Conference of the Methodist Episcopal Church...
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