State v. Bollinger

• Decision Date: 02 July 1924
• Citation: 101 So. 282,88 Fla. 123
• Parties: STATE ex rel. ALRSTON v. BOLLINGER et al.
• Court: Florida Supreme Court

101 So. 282

88 Fla. 123

STATE ex rel. ALRSTON v. BOLLINGER et al.

Florida Supreme Court, Division A.

July 2, 1924

Error to Circuit Court, Palm Beach County; E. C. Davis, Judge.

Habeas corpus, on the relation of Alexander J. Airston, against Sidney W. Bollinger and another, for the custody of his child. Judgment for defendants, and petitioner brings error.

Reversed.

Syllabus by the Court

SYLLABUS

Common-law rule stated as to right of parent to revoke agreement for transfer of custody of child to another. Under the common law, an agreement whereby the father seeks to transfer the custody of his minor child to another is contrary to public policy, and may be revoked by a parent, who may recover the custody of his child on writ of habeas corpus.

American rule stated as to effect of parents' agreement for transfer of custody of child to others. It is the general American rule that agreements by parents for the transfer to others of the custody of their children are against public policy, and are not binding on the parties.

Agreement by father to surrender custody of child not binding on him. An agreement by which the father surrenders the custody of his child is not binding; he is at liberty to revoke his consent afterwards and obtain the child by writ of habeas corpus.

Father may not irrevocably divest himself of or abandon child at will; child may demand from father support, education, and protection. The father owes a duty to nurture, support educate, and protect his child, and the child has the right to call on him for the discharge of this duty. These obligations and rights are imposed and conferred by the laws of nature; and public policy, for the good of society, will not permit or allow the father to irrevocably divest himself of or to abandon them at his mere will or pleasure.

Parent will not be held to have surrendered custody of child permanently to stranger, unless intention clearly appears presumption that surrender by parent of custody of child to stranger is intended to be temporary. A parent will not be held to have surrendered the custody and control of his child permanently to a stranger, unless it clearly appears that such was his intention; and it will be presumed that the surrender of the custody of the child by his parent is intended to be temporary, unless the contrary clearly appears.

Understanding between parent and person having temporary custody of child that custody permanent must he clear and mutual. It is not sufficient that the person having temporary custody of the child understood that the parent had granted to him permanent custody; but it must be clear that there was a corresponding understanding on the part of the parent.

Statutes permitting parent to part with children by certain methods held to imply that those methods exclusive. The statutes of Florida that permit a parent to part with his children by apprenticeship, adoption, and guardianship imply that it can be done in no other mode.

COUNSEL

Staff & Vining and M. S. Bobst, all of Miami, for plaintiff in error.

Farrington & Hall, of Ft. Lauderdale, for defendants in error.

OPINION

BROWNE J.

Alexander J. Airston brought habeas corpus proceedings to secure the custody of his child, Marguerite Louise Airston, who had been in the custody and care of its grandparents, Sidney W Bollinger and Elizabeth T. Bollinger, since the death of her mother when she was three weeks old.

The circuit judge denied the application, and awarded the custody of the child to Sidney W. Bollinger and Elizabeth T. Bollinger.

The right of the grandparents to the custody of the child is based upon what the court in its opinion said was 'some sort of an agreement entered into whereby this child should remain with its grandparents.'

Under the common law an agreement whereby the father seeks to transfer the custody of his minor child to another is contrary to public policy, and may be revoked by the parent, who may recover the custody of his child on writ of habeas corpus. Regina v. Smith, 16 Eng. L. & Eq. Rep. 221; Town of Torrington v. Town of Norwich, 21 Conn. 543; Johnson v. Terry, 34 Conn. 259. That doctrine seems to have the sanction of this court. Hernandez v. Thomas, 50 Fla. 522, 39 So. 641, 2 L. R. A. (N. S.) 203, 111 Am. St. Rep. 137, 7 Ann. Cas. 446, where it was said:

'As to the alleged promise or agreement by Eugene C. Hernandez, the father, to transfer the custody of said children to their grandmother in the event he found himself unable to care for them as well as she had done, such agreements are against public policy, and are not, in cases circumstanced like the one under discussion, enforceable or binding upon the parties.'

Schouler, in his work on Domestic Relations, says:

'It is the general American rule that agreements by parents for the transfer to others of the custody of their children are against public policy, and are not binding on the parties.' Volume 1, § 748 (6th Ed.) citing Hernandez v. Thomas, supra, in support of the rule.

There seems to be some difference in the American authorities as to the right of the father to recover custody of his child when he has entered into a contract to transfer its custody to another, but the better rule is thus stated by the Missouri court:

'It is also conceded that the father, by the common law, cannot irrevocably divest himself, even by contract with the mother, or any other person, of the custody of his children. It is held, both in England and in this country, that an agreement by which the father surrenders the custody of his child, is not binding; and that he is at liberty to revoke his consent afterwards and obtain the child by writ of habeas corpus. In some of the states, under special circumstances, it has been held otherwise, but such is the manifest current of authorities, in this country, as well as in England. * * * As to any mere article of property, either personal or real, the law permits a man to dispose of it, by gift or contract, as he chooses. Not so of his children. The father owes a duty to nurture, support, educate and protect his child, and the child has the right to call on him for the discharge of this duty. These obligations and rights are imposed and conferred by the laws of nature; and public policy, for the good of society, will not permit or allow the father to irrevocably divest himself of or to abandon them at his mere will or pleasure. Such, generally, is the admitted law of the case.' In the matter of Berenice S. Scarritt, 76 Mo. 565, 43 Am. Rep. 768.

But, even in those jurisdictions where such contracts are not regarded as against public policy, the rule is that----

'A parent will not be held to have surrendered the custody and control of his child permanently to a stranger, unless it clearly appears that such was his intention; and it will be presumed that the surrender of the custody of the child by his parent is intended to be temporary, unless the contrary clearly appears.' 29 Cyc. 1593.

'It is not sufficient that the person having temporary custody of the child understood that the parent had granted to him permanent custody; but it must be clear that there was a corresponding understanding on the part of the parent. Miller v. Miller, 123 Iowa, 165, 98 N.W. 631.' Jamison v. Gilbert, 38 Okl. 751, 135 P. 342, 47 L. R. A. (N. S.) 1133.

In the case under consideration Mr. Bollinger testified that 'we always understood that we were to have the child and raise it.' But the record fails to disclose that there was any 'corresponding understanding on the part of the parent.'

In Iowa, where it is not the rule that such contracts are against public policy, the Supreme Court said:

'It may be admitted such a contract may be made, but certainly it should be clear, definite and certain.' Drumb v. Keen, 47 Iowa, 435.

In that case after the death of the mother the father wrote a letter to the child's maternal grandmother just before the death of his wife, in which he said:

'A ----- is no better. She wants you to take Victor; thinks it best for you to have him; I think so too.'

This was the agreement under which the grandparents sought to retain the custody of the child, but the court said:

'This offer was accepted, and thereunder and thereby the child was delivered to the defendants. Conceding this offer and acceptance to have the force and effect of a contract, we are clearly of the opinion it does not import that the plaintiff thereby deprived himself of the right to the care and custody of his child for any length of time.'

In People ex rel. Barry v. Mercein, 3 Hill (N. Y.) 399, 38 Am. Dec. 644, the court said:

'Our law recognizes no general authority in a father to dispose of his children except for some specific and temporary purpose; such as apprenticeship during the father's life, or guardianship after his death.'

The Florida laws give to parents the right to part with the custody of children by apprenticeship, adoption, and guardianship. The existence of these statutes, and the several specific requirements essential to the validity of such abandonment, seems to indicate that by these methods only can a parent relieve himself of his obligation to support, educate, maintain, and nurture his minor...