Paddock v. Eager

¶1(dissenting.) The appellants argue that in applications for the custody of a child the chief concern of the court will be the interest of the child, and not the legal right of any claimant. That rule may be conceded, but it by no means follows that the rights of parents are extinguished. In Hoxsie v. Potter, (R. I.) 17 Atl. Rep. 129, the case chiefly relied on by appellants, the court did not base its decision upon the real or supposed interests of the child. The court there say that “primarily the welfare of the child is to be considered; but when … that is not the controlling consideration, the court may look beyond it to existing relations. ” In that case the welfare of the child was believed to be assured in the hands of either claimant. That question being thus eliminated from the controversy, the decision was based on the relations existing between the child and the various litigants, and the mother, having voluntarily allowed the child to live with the sister of her deceased husband from birth until the age of nine years, was properly held to have waived he? prima facie right to the custody of the child. One consideration there dwelt upon by the court was that the mother had other children, while the aunt had none. But the court distinctly recognizes that, other things being equal, the prior right is in the parent as against any third party. We might rest the decision of this case upon that rule; but a careful study of the testimony convinces us that the interests of the child, and the superior legal right of a parent, concur to require an affirmance. The father has no other child, and can do more for his daughter than would be possible under other circumstances. The grandmother has several children, whose claims upon her bounty are at least equal to those of her grandchild. In the ordinary course of events the father, who is still young, will be able to care for his daughter during many years, which cannot be said with quite the same probability of the grandmother. But a consideration still more controlling *713is that the testimony gives reason to believe that if the child remains with her grandmother she will be taught to dislike her father, and an estrangement produced in her feelings towards him which no affection on his part could ever change. Her present dislike for him, which can be ascribed to nothing but the influences by which she is surrounded, is strong evidence that a change is required both for her sake and for his. On the other hand, the testimony shows- no reason to believe that if placed with her father any effort will be made to estrange her feelings from the family of her mother. Having lost her mother, the court will not willingly so dispose of her custody that the misfortune be made greater by an estrangement from her natural protector and nearest surviving relative. The order appealed from should be affirmed, with costs.