Matter of Application of Bell

JAMES,

J.

Habeas corpus

brought by Jesse M. Bell fc$ the purpose of obtaining the custody of Eileen Bell, a female child of the age of eight years and the daughter of petitioner and his deceased wife. Petitioner and the mother of the child were separated when the little girl was about the age of six months, the wife complaining of the conduct of the husband. The child and her mother thereafter for a time lived with the parents of Mrs. Bell, and in 1909 the wife brought an action against the petitioner to secure a decree of divorce, alleging as ground therefor the cruel conduct of the husband. No answer was filed in this action and a decree followed granting the divorce and giving the custody of the

minor

child to the mother. Petitioner here subsequent to the entry of decree of divorce, and up to the date of the death of the mother of the child, paid the sum of ten dollars per month for the support of his offspring. The mother died in the year 1913, the little girl then being of the age of six years. The latter, after the death of the mother, was taken into the charge of Mrs. Hugh I. Krause, a sister of Mrs. Bell, and has since lived with Mrs. Krause and her husband and has been treated as the natural child of the couple. Mr. and Mrs. Krause have had no children of their own. It seems by the testimony taken before the commissioner that no dis

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pute is made as to the fact that the little girl has become much attached to Mir. and Mrs. Krause and that these two people desire to have her in their household and to treat her as their own daughter. Heretofore they took proceedings for her adoption, but were not successful in securing a valid order to that effect because of the lack of consent of the father of the child. Meanwhile petitioner has married again and ever since the death of his first wife has endeavored to secure possession of his daughter. Briefly, the situation as it is presented on behalf of the petitioner and the respondents is: Petitioner admits the child is being well cared for and is attached to her aunt and the latter’s husband and is altogether well situated; on his part he insists that, being the natural father of the child, he is entitled to her custody, so long as he is a fit and proper person and able to provide for her present and future welfare. It is well settled that the parent has no right of property in his or her child, but that under ordinary conditions, where such person is found to be a fit and proper person, the custody of the minor will be reposed in his or her control, rather than that of one not occupying the parental position. But there may be peculiar circumstances presented which will authorize a court to go beyond the lines of the ordinary rule and consider as to which custody may best subserve the interests of the child itself, present and future. Such a case is well illustrated by the facts disclosed in evidence here. The little girl in this ease has reached the age of eight years and has never known the custody of the petitioner. She was but a small infant when her mother left her father and she passed quite naturally, after the death of her mother, into the hands of her aunt with whom she was well acquainted and much attached to. Since the divorce the father has only visited the child upon one occasion and then did not seek to caress his daughter in any way. In his testimony he admits this to be the fact, but explains his conduct by saying that he was advised by his attorney not to attempt to caress the little girl or interfere with her in any way, as it might cause trouble with the mother or her parents, with whom she was then staying. Even though full credit were given to this excuse and it should appear that it was not because of a want of affection that the father failed to treat the child on the occasion of that visit with ordinary parental consideration, the fact re