State ex rel. Paine v. Paine

• Decision Date: 30 April 1843
• Citation: 23 Tenn. 523
• Parties: THE STATE on the relation of PAINE v. PAINE.
• Court: Tennessee Supreme Court

23 Tenn. 523

THE STATE on the relation of PAINE

v.PAINE.

Supreme Court of Tennessee.

April, 1843.

On the first day of March, 1841, William L. Paine presented a petition to William C. Dunlap, one of the judges of the circuit courts of the State of Tennessee, in which he stated that his wife, Eliza Paine, had abandoned him and taken with her his three children, Henry, Sarah, and John, minors, and that she detained them from the custody and possession of the petitioner, and praying the issuance of the State's writ of habeas corpus, commanding the said Eliza to bring the said children before him at a day and place to be specified, and show cause, if any she had, why the said children should not be restored to his possession.

This writ was issued, and served on the said Eliza, commanding her to appear before the judge of the circuit court, to be held at Sommerville, Fayette county, on the 3d Monday in May, 1841, and have with her the said three children, Henry, Sarah, and John.

She filed an answer, in which she stated that “a long and continued series of acts manifesting an indifference, coldness, and neglect on the part of her said husband, to which was added violent and abusive language, without provocation, and, finally, inhuman treatment, left her no alternative but to drag out a wretched and miserable existence, or abandon a home where she believed it would be neither safe nor prudent to remain.” She admitted that she took with her the three children; Sarah, five years of age; Henry, aged about seven; and John, about three years. She insisted that the tender age of said children required the constant care of a mother, and denies that she had exercised any illegal or unwarrantable constraint over either of them, but had exercised only such control as a parent, anxious to promote the morals of the children, should exercise. She stated that he was incompetent to have the control and possession of the children, and that she was unwilling that he should have it, for the reason that he was a miserable hypochondriac, petulant, capricious, and violent in his temper, and that, in the event that he should have the possession of them, they would be thrown chiefly in the keeping of negro slaves, and their mental and moral culture neglected by reason of his absence from home, etc.

The relator replied. He denied that he had treated her with neglect or insult, or inhumanly, or that he had ever treated her with violence, except on one occasion, when, many years before, he slapped her on the face slightly, in a moment of irritation, caused by her charging him with falsehood. He alleged that he had been unhappy, but that it was in consequence of the bad temper and improper treatment of respondent.

He denied that he was from home more than usual, and then only in the ordinary pursuits of business, etc., and vindicated his right to his children, and his fitness for the task of training and educating them. He stated that he was not desirous of taking the children entirely away from their mother, but was willing that she should have free, regular, and unembarrassed intercourse with them, provided they should be in his control, and where he could enjoy their company at pleasure.

There was proof taken, by which it appeared that W. L. Paine, the relator, a widower, having a competent estate, consisting of real and personal property, and having three children by a deceased wife, intermarried with Eliza Paine. She had some property. They had three children, and were both members of the Methodist church at the time she abandoned him. Some witnesses proved him to be a man of good moral character in his public deportment. The preponderance of the testimony is that he was hypochondriacal, peevish, and capricious, and instances of coldness and neglect towards his wife were proved. Conjugal infidelity on either side was not charged or proved, and proof was not wanting to show that both were competent and fit to have the custody and control of the children in most respects.

The case was tried at the January term, 1842, by Judge Dunlap; and he, being of the opinion that the children Henry, Sarah, and John were not “lawfully restrained” by said Eliza Paine, directed that they “be restored to their mother, the said Eliza;” that “the petition of said relator be dismissed, and that he pay the costs.” From this judgment he prayed and obtained an appeal.

H. G. Smith, for the relator. The object and effect of this writ of habeas corpus are to discharge persons from unlawful imprisonment. Eever restraint upon liberty is, in the eye of the law, imprisonment, whatever may be the place or in whatever manner in which the restraint is effected. 2 Kent's Com. 26.

When the writ is directed to private persons to bring up infants, the court is bound ex debito justiciae to set the infant free from improper restraint. Rex. v. Delaval, 2 Burr. 1431.

Detention of the infants by a person against the will of the party entitled to the custody of them is an unlawful, and, therefore, an improper, restraint. Detention by one, against the will of the other, of two or more persons having an equal and joint right of custody, as where there are two or more testamentary or other guardians of the person, is not an illegal restraint which would be removed by the writ of habeas corpus. But this applies where there is a joint and equal right of custody, not where the custody is claimed by equal, distinct, and opposite rights. There can not be equal, separate and adverse rights. The father and mother, living separate, have not a joint and equal right to the custody of the children of the marriage. One or the other has the better and exclusive right, and this is the father.

The father has the natural and legal right to the custody of his children-- even against the mother. Shellford's Mar. & Div. 677, 679; 18 Wend. 642; 19 Id. 16;16 Pick. 205; 1 Bla. Com. 452; 5 East, 2211; 31 Com. Law Rep. 154. This is a universal principle in civilized nations. It is the natural law--the Christian law. It is founded in the physical, moral, and intellectual superiority of the male sex. It results from the duty devolved by law on the father to maintain, educate, and protect his children. To discharge the duty requires the power, and involves the right. The right is a legal right, and it is coupled with an interest, and will be enforced at law.

The mother, as such, has no authority over her children. Reeve's Dom. Rel. 295; 1 Bla. Com. 453; 2 Fonbl. 512, note h; 18 Wend. 642.

The right of the father being exclusive and legal, the courts will enforce it by the writ of habeas corpus. The language of the cases is that the court is bound to do so. Shellford's Mar. & Div. 678; 16 Pick. 205; 31 Com. Law Rep. 159; 19 Wend. 16; Murray's Case cited, 5 East, 223; Jacobs, 251 (cited Shelf. 680, note); 31 Com. Law Rep. 376; 2 Serg. & R. 174; Alston v. Foster, before Chan. Buckner of Miss. in 1841; 19 Wend. 16; 18 Wend. 637.

The right will be enforced in favor of the father, against the mother, notwithstanding provisions contained in deeds of separation for their residing with the mother. Shelf. 680; Jacobs, 251; 11 Ves. 531; Lytton's Case cited, 5 East, 222 (Shelf. 680).

In no case will the court, on habeas corpus, take the children from the father. 9 I. B. Moore, 278 (17 Eng. Com. Law Rep. 159).

The husband is entitled to the custody of the person of his wife. Reeves' Dom.. Rel. 66; 2 Kent's Com. 181; 4 Petersd. Ab. 21; Shelf. 667; 16 Pick. 206.

It being thus clear that the father has the legal and exclusive right to the custody of his children against all persons, even the mother, detaining them contrary to his will, that the writ of habeas corpus is the proper writ to enforce this right, it remains to notice on what principles the courts act in executing or withholding their powers at the instance of the father.

When the children are at years of discretion, the court invariably places them at entire liberty, and suffers them to go where they please. Such were the cases. Delaval's, 3 Burr. 1431; Smith's 2 Strange, 982; McDowle's Case, 8 J. R. 328.

When the infants are not of years of discretion, the court delivers them to the father or not, according to circumstances, regarding mainly the interest of the child. See cases passim. See all the cases cited.

The presumptions are all in favor of the father. The entire burden of proof lies on the party denying the father's claim.

It must be a clear and strong case of unfitness on his part, as being a vagabond, etc., that will be cause for withholding the children. Bugg's Case, 16 Pick. 205.

Open and notorious cohabitation with another woman than his wife no cause. Greenhill's Case, 31 Com. Law Rep. 154.

No cause, though the child was not the offspring of the apparent father. Murray's Case, cited 5 East, 223.

No cause that father has no place of residence of his own. Westmeath's Case. Jacobs, 251 (Shelf. 680, note).

Ill-usage of wife, compelling her to withdraw from him, no cause. 19 Wend. 16, and other cases.

No cause, the infancy of the children. 19 Wend. 16--infant five and one-half, four and one-half, and two and one-half years. 31 Com. Law Rep. 153; 16 Pick. 205, three or four years; Jacobs, 251, five years and seven months; 2 Serg. & R. 174, ten and seven years; 31 Com. Law, nine and six years; Murray's Case, 5 East, 222 cited, five years.

Nor is the sex of infants cause. Greenhill's Case, females five and one-half to two and one-half years; Westmeath's, female five years; Addicks's, females ten and seven years: Isley's, female nine years.

Nor is the mother's fitness. Shelf. 679; Jacobs, 251; 31 Com. Law Rep. 154; 16 Pick. 305;2 Serg. & R. 174; Alston's Case before Chan. Buckner.

Nor is the poverty or humble station of the father.

Nor divorce or cause of divorce. Murray's Case cited, 5 East, 222; Greenhill's Case, 31 Com. Law Rep.; Addick's Case, 3 Serg. & R.

The mother's good character is no cause for denying the custody to the father...