State v. Reuff
| Decision Date | 25 June 1887 |
| Citation | 2 S.E. 801,29 W.Va. 751 |
| Parties | STATE ex rel. NEIDER v. REUFF. |
| Court | West Virginia Supreme Court |
Submitted June 4, 1887.
Syllabus by the Court.
The authority of a father to dispose of the custody of his minor child in any other manner than by lawfully binding him as an apprentice, or appointing for him a testamentary guardian ceases at the time of his death.
A father cannot, by any instrument in writing or otherwise relinquish or surrender to another the custody of the person of his minor child so as to deprive the mother of such child after the father's death, of her right to the custody thereof, and to the care of its education.
As a general rule, the father during his life-time, and, after his death, the mother, is entitled to the custody of the person of their minor child.
The right of the father or mother to the custody of their minor child is not an absolute right, to be accorded to them under all circumstances; for it may be denied to either of them if it appears to the court that the parent otherwise entitled to this right "is unfit for the trust."
Upon the hearing of a writ of habeas corpus sued out by the mother after the death of her husband to obtain the custody of their minor child, and it appears from the return to the writ, or otherwise, that the mother, shortly before, had been insane, it is proper for the court or judge before whom the same is pending to cause such further inquiry to be made as will enable the court to determine whether she is fit to be intrusted with the custody of her child.
If, upon the hearing of a writ of habeas corpus, it is apparent that proof of an existing fact essential to a correct determination of the controversy has been omitted, and that such proof can be readily obtained, and the condition of the proceeding is such that, without injury to the opposite party, the same may be done, the court should delay the final hearing thereof for a reasonable time, that proof of such material fact may be supplied.
In this state a minor child can only be bound as an apprentice "by his father, or, if none, by his guardian, or, if neither father nor guardian, by his mother, with the consent entered of record of the county court of the county in which the minor resides; or, without such consent, if the minor, being fourteen years of age, agree in writing to be so bound, or unless such minor be found begging in such county, or is likely to become chargeable thereto;" and, if not so bound, the indentures of apprenticeship are void.
Error to circuit court, Ohio county.
On the eighth of February, 1886, Mary Neider presented her petition to one of the judges of the circuit court of Ohio county, alleging that she is the mother of Agnes Neider, aged less than three years, whose father, her husband, died on the ___ day of ___, 1885; that said child is unlawfully detained in said county from her care, control, and custody; and t hat she is deprived of her lawful right by one George Reuff; and prayed that the writ of habeas corpus ad subjiciendum might be granted her, to free her child from unlawful custody, commanding him to produce the body of the child, and that she might be awarded the custody thereof. By the order of the judge made in vacation, on the eighth of February, 1886, the writ was issued, returnable to the tenth February, 1886, and was executed the next day. On the fifth of January, 1887, Reuff produced the child in court, and made return to the writ, in substance, that he has, and is entitled to have, the lawful care and custody of the child, Agnes Neider, because he says that on the fifteenth day of October, 1884, Mary Neider, the relator, the mother of the child, being insane, and an inmate of the Hospital for the Insane at Weston, in this state, having been duly and legally adjudged insane, and duly committed to said hospital according to law, Nicholas Neider, the father of said child, having the lawful custody thereof, placed her in the custody of the Children's Home of the City of Wheeling, a corporation created and existing in the city of Wheeling, under chapter 55 of the Code of West Virginia, and by an instrument in writing executed by him relinquished forever all power and control over her, and invested said Children's Home with the same power and control over her as he himself theretofore possessed; and that afterwards, on the twenty-first October, 1884, the Children's Home indentured her to him until she should become 18 years of age, and gave him, by virtue thereof, the custody and care of the child, and that he has ever since provided for her in a comfortable manner, and treated her with kindness and affection, and she is in healthy, happy, and comfortable condition; and that, he and his wife having no children, he regards this child with the same attachment and affection as he would a child of his own, and that, since she has been in his care, he is attending to her education in a manner suitable to her tender years.
The instruments in writing made between the father and the Home, whereby he relinquished to it the custody of the child, and whereby the Home pretended to bind her to the respondent, as well as the charter of the Home issued by the recorder of Ohio county, are made parts of said return. It is unnecessary to say anything further in reference to the contents of these instruments except that, by the charter of the Children's Home, the purpose of its creation is declared to be "for the purpose of affording a home, food, clothing, and schooling for destitute or friendless children, and to place them with respectable families or persons to learn some useful trade or occupation."
The relator moved to quash, and also demurred to the return, which motions the court overruled. On the eleventh of January, 1887, the case was finally heard, when the circuit court entered the following judgment: "This day came again the parties by their attorneys, and the petitioner moved the court for an order and judgment that the petitioner have the custody of the person of said infant Agnes Neider, and that she be delivered by the respondent George Reuff to the petitioner Mary Neider, which motion was argued by counsel and overruled by the court, to which ruling the petitioner by counsel excepts; and thereupon the court, having heard this matter upon the petition and the return alone, both consider that the respondent George Reuff do retain the custody and possession of the said Agnes Neider, and that respondent recover of the petitioner his costs by him about his defense in this behalf expended." To this judgment the petitioner has obtained a writ of error.
W. P. Hubbard and Denis O'Keefe, for plaintiff in error.
Dovener & Elson, for defendant in error.
The grounds of error assigned are: (1) The action of the court in overruling the motion to quash the return, and in overruling the demurrer thereto; (2) in overruling the relator's motion to have the custody of the person of her infant child.
This case presents for consideration, among others, the following questions: What is the extent and duration of the father's right over the custody of the person, and the care of the education of his minor child? In what manner and during what period may he dispose of the custody of such child during his life-time? Under what circumstances does the right of the father to the custody of such child cease, and the mother succeed to this right to the custody of such child? By whom, in what manner, may such child be bound out as an apprentice? And what rights were acquired by the Children's Home to the custody of the child Agnes Neider by the agreement made with its father when he relinquished to the Home his control over the child, and what right was acquired from the Home by the respondent to the custody of the child?
From the view we have taken of this case, it is unnecessary for us to consider whether the act of the legislature passed on the third of March, 1870 referred to in the agreement dated the fifteenth of October, 1884, entitled "An act to provide for orphans and destitute children," is constitutional or not, and therefore on this subject we express no opinion. A careful examination of the authorities leads us to the conclusion that by the common law the father is entitled to the custody of his minor children, and to the benefit of their labor while they live with and are maintained by him. This right grows out of his obligation to maintain and educate them, and is correlative to it, but this obligation continues only during the life-time of the father. While the common law imposes no obligation on the father to provide for the support of his infant children after his death, it does not confer upon him the right correlative to it, to bind them to service after his death. Johnson v. Terry, 34 Conn. 259; State v. Baldwin, 5 N. J. Eq. 454; Campbell v. Cooper, 34 N.H. 49; Jenness v. Emerson, 15 N.H. 486; 1 BI. Comm. 452, 453. An agreement by the father for the services of his minor child ceases to be binding on the minor at the death of his father, unless made by indentures of apprenticeship in conformity with the provisions of some statute authorizing him to do so, and therefore a parol gift of the child by the father gives no right to the service of the child after the father's death. The father is entitled to the custody of his minor children as guardian by nature and guardian by nurture, and this guardianship is a personal trust in the father, and he has no general power to transfer or give them to another, nor can he alienate his right to the custody and control of his minor child, except that he may bind it out as an apprentice. 5 N. J. Eq. 454, supra; People v. Mercein, 3 Hill, 399, 38 Amer. Dec. 644; Queen v. Smith, 16 Eng. Law & ...
To continue reading
Request your trial