Risting v. Sparboe

• Citation: 179 Iowa 1133,162 N.W. 592
• Decision Date: 12 May 1917
• Docket Number: No. 31308.,31308.
• Parties: RISTING v. SPARBOE ET AL.
• Court: Iowa Supreme Court

179 Iowa 1133

162 N.W. 592

RISTING

v.SPARBOE ET AL.

No. 31308.

Supreme Court of Iowa.

May 12, 1917.

Appeal from District Court, Hamilton County; Edward M. McCall, Judge.

Habeas corpus proceedings in behalf of Selma Risting by her father resulted in an order restoring the child to the custody of defendants. The plaintiff appeals. Affirmed.J. E. Burnstedt, of Webster City, for appellant.

O. J. Henderson, of Webster City, for appellees.

LADD, J.

[1] The child involved in this case, Selma Risting, was born April 26, 1910, and therefor was a few days less than five years old at the time of the trial. She lived with her parents on a farm in Murray county, Minn., until the summer of 1913, when her mother became ill and started out for treatment, taking the child with her. She visited two places before reaching Heron Lake, Minn., where she underwent an operation, and, after remaining there four weeks, proceeded to the home of her sister, Mrs. Hotchkiss, a physician living at Webster City, where she died December 19, 1913. In the meantime her husband, who brings this action in the name of the child, found time to visit her between trains at Heron Lake, at Webster City on November 18th and more frequently thereafter. She had reached the latter place in so helpless a condition as that she was carried from the train, with but 10 cents in money, and, upon presentation of the account for her treatment and care at the hospital, Risting forwarded it to her, with the suggestion that she borrow the funds, as he could not get “the money for all this just now.” However, he owned 160 acres of improved land of the value of $75 per acre, and had $2,000 or $3,000 worth of personal property. On her deathbed she extracted a promise from him that the little girl should stay with Mrs. Hotchkiss, and Selma was left there. About January 20th following he came after her. To avoid having her taken the child was removed to the home of Mr. and Mrs. Sparboe, the latter a sister of his deceased wife, as it was thought he would be more willing to leave her with them. After considerable parley he concluded to do so, and the only understanding had is that to be inferred from a conversation in which he said he would leave her, and Mrs. Sparboe replied that she “did not like to take the child and then have him come and take her away after our folks became attached to her,” to which he responded he “would not do that.” Though this is denied by Risting, the court might well have found the conversation to have been as recited. The child remained with defendants, and Risting returned to his home in Minnesota. In the following summer defendants took the child to see her father, and when they were about to leave he directed them to leave her with Mrs. Ramsdahl, a sister of his deceased wife, who resided near St. James, Minn.; they did not do so, and subsequently Risting apologized by letter for what he had said. Early in the next year Risting, after visiting several days in the neighborhood of defendants' home, demanded the custody of the child. This was refused, and this suit was begun March 17, 1916. The evidence disclosed that Risting lives alone on his farm, and did not intend to take his daughter there, but to place her, if awarded him, in the custody of Mr. and Mrs. Ramsdahl, and that his only reasons for desiring such change were that the Ramsdahl home was about 30 miles nearer his farm, and to visit the child would cost him several dollars less than were she to remain with defendants, and also he felt more at home at Ramsdahls than with defendants. On the other hand, defendants do not claim the child was given to them, nor that they are entitled to the permanent custody of the child. Nor does Mrs. Hotchkiss claim her. All contended by defendants is that the best interests of the child require that she continue where she is, owing to her condition and the circumstance that Risting is asking for her custody, not in order to care for the child himself, but to transfer her to another of the child's aunts. Though Risting's treatment of his wife is subject to just criticism, it seems to have been owing to no design, but to have been owing to a selfish nature, lacking in appreciation of the tenderer relations of life. This accounts for his having twice punished the child during his brief stay at the Hotchkiss home, she then being three years old past, and it is farther evidenced in the persistency with which he is insisting on the change of the abode of the child, without apparent consideration for her welfare, and solely for his own convenience and a small saving in expense. Otherwise as a father he appears to be subject to no just criticism. But utter selfishness alone cannot be allowed to cut off the natural claim of parents to the custody of their own offspring. Human experience has demonstrated that children ordinarily will be best cared for by those bound to them by the ties of nature, “bone of their bone and flesh of their flesh.”

[2] Something more than the material things of life is essential to the nurture of a child, and that something is the father's and the mother's love, or as near its equivalent as may be. Recognizing this, the law raises a strong presumption that the child's welfare will be best subserved in the care and control of parents, and in every case a showing of such relationship, in the absence of anything more, makes out a prima facie case for parents claiming the custody of their children. “Indeed,” as said in one case, “this presumption is essential to the maintenance of society, for without it man would be denaturalized, the ties of family broken, the instincts of humanity stifled, and one of the strongest incentives to the propagation and continuance of the human race destroyed.”

[3] At the common law the right to custody was in the father, but section 3192 of the Code declares that parents are “equally entitled to their care and custody,” and section 3193, in effect, that on the death of one the other shall be entitled to such care and custody. Some of the earlier decisions seem to have treated the right of the father to the custody of the child as paramount, even absolute, except in cases of gross abuse of parental authority, and expressions...