Campbell v. Wright

SMITH, C.

The appellant, who is the father of Fannie Marie Campbell, an infant of two years of age, applied to the lower court by petition to be appointed guardian of. her person and estate, the last consisting of personal property of merely nominal value. The application was contested by the respondents, John and Mary Wright, the maternal grandparents of the minor, who made a counter application for the appointment of John Wright, the grandfather, who was accordingly appointed by the court. The appeal is from this order.

The petition—or as it is entitled, “answer”—of the respondents contains no allegation that the appellant was in' any way unfit for the office of guardian. Nor is there anything in the findings (or indeed in the evidence) that can be regarded as tending to show such unfitness. But the petition of the respondents, in effect, alleges, and the court in its conclusions of law finds, that “it is for the best interests of the said minor child, in respect to its temporal, mental, and moral welfare, that .... the custody of said minor child be awarded to said John Wright.”

The language of the court is taken from section 246 of the Civil Code, which was apparently construed as giving to the court the unlimited discretion to appoint for the minor a guardian other than the father, if in its opinion the interests of the minor would be thereby subserved. But in this the court, I think, misconstrued the extent of its discretion.

[382]

Under the general law, and independently of the provisions of the codes, the father has a natural right to the care and' custody of his child (2 Kent’s Commentaries, 205; Schouler on Domestic Relations, secs. 245-48); and this right is recognized by the provisions of our codes (Civ. Code, sec. 197; Code Civ. Proc., sec. 1751); which are to be regarded as but a re-expression of the principles of the common law governing the subject. (Civ. Code, sec. 5.) The father’s right, at least so far as the services of the child are concerned, is strictly a property right, for the loss of which—as in the case of servants generally—an action could at common law be maintained; and in other respects the right, though not commonly spoken of as such, is of essentially the same nature as the right of property. For though the subject of the right is not salable, it is valuable, and of all species of property the most valuable to the parent. Hence it is a mistake to suppose that the right of the father is merely fiduciary. It is that; but it is also— like the right of the child in the father—a right vested in him for his own benefit, and of which it would be a personal injury to deprive him. The right must therefore be regarded as coming within the reason, if not within the strict letter, of the constitutional provisions for the protection of property. (Beatty, C. J., in